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

HCCrA 16/98

BETWEEN:

TEANGIRAOI TABOEWA
Appellant

AND:

THE REPUBLIC
Respondent

Mr B Berina for the Appellant
Mr T Tabane for the Respondent

Date of hearing: 26 March 1999

JUDGMENT

On 10 July 1998, after a trial lasting 4 days, the appellant, a police sergeant, was convicted in TabNorth Magistrates' Court in case No. 50/98 of the offence of common assault contrary to section 237 of the Criminal Code Cap. 67. The complainant was a fellow police officer. The evidence accepted by the Single Magistrate hearing the case was that the appellant struck the tip of the complainant's shoulder with his elbow as the complainant reached out his hand to open the door of a police vehicle. The appellant was consequently sentenced to 1 month's imprisonment suspended for 2 years.

That decision is now appealed upon the following grounds:

(i)	The learned Single Magistrate objected excessively in the Conduct of the defence

(ii)	The learned Single Magistrate formed an opinion about the accused committing the assault at the very beginning of the trial and as such her mind was tainted by such premature opinion throughout the trial

(iii)	The learned Single Magistrate erred in law in refusing to allow the Appellant to question the complainant thoroughly regarding his prior inconsistent statement

(iv)	The learned Single Magistrate failed to order the Prosecution to make Cpl Tangaroa Kabeia available for the defence to call/question

(v)	The learned Single Magistrate put undue weight on the evidence of the Prosecution without considering the evidence called by the defence adequately or at all.

GROUND (i)	It is clear from the minutes of the proceedings in the court below that the appellant, who was not legally represented, was frequently interrupted by the bench while trying to cross-examine the three witnesses for the prosecution. The Single Magistrate even interrupted the appellant while he was trying to address the court at the close of the evidence. The police prosecutor did not appear to have received similar treatment.

It is argued for the appellant that the interference by the Single Magistrate prevented the appellant from properly presenting his defence.

Counsel for the appellant referred me to 14 instances in the minutes where the Single Magistrate disallowed the appellant's question in cross-examination. Counsel submits, and I must agree with him, that all of those questions, except possibly one, were relevant and should have been allowed.

In my view, the Single Magistrate's rulings on admissibility were erroneous in the following ways.

1.	Some of the appellant's questions were wrongly disallowed as irrelevant because they did not go to the issues. Such questions went to the witness's credit and so were not irrelevant.

2.	Other questions were wrongly disallowed because they did not concern matters raised in chief. Cross-examination is not confined in that way. The slightest direct examination opens up the whole of the cross-examiner's case.

3.	The complainant gave evidence in chief of a struggle at the scene between 3 people. When the appellant asked the complainant to explain clearly the struggle that he saw, the Single Magistrate disallowed the question as irrelevant. No such objection had been made when the subject was raised in chief. In my view, the appellant's question should have been allowed.

4.	The one question by the appellant which was possibly not relevant was a question regarding the ownership of a certain tree. I say "possibly" because the Single Magistrate cut the appellant off without giving him any chance to develop the point. Since the appellant was not legally represented, he should have been given some latitude.

GROUND (ii)	In support of this ground, counsel for the appellant relies on two comments made by the Single Magistrate in the course of the trial. The first was when the Single Magistrate disallowed a question as "irrelevant with the actual crime" (p.5 of minutes). The second was when the Single Magistrate refused to see the scene of the crime because "it is irrelevant with the assault committed whether it is lawful or not" (p.7).

It is argued for the appellant that the use of the words "actual crime" and "assault committed" when the appellant had yet to be heard, showed that the Single Magistrate had already formed an opinion as to the guilt of the accused.

I do not think that such a conclusion necessarily follows from the use of those words. It must be said, however, that it was apparent that the Single Magistrate, whether she realised it or not, had entered into the arena on the side of the prosecution at a very early stage of the trial.

GROUND (iii) 	The proceedings under appeal were the second time the appellant had been tried for the same offence. His original conviction was also appealed to the High Court in HCCrA 5/97. In that appeal the Republic conceded that there was a reasonable apprehension that the magistrates were biased and, in accordance with an agreement between counsel for the parties, a retrial was ordered.

In the present case, the appellant attempted to cross-examine the complainant on evidence he had given in the first trial which the appellant claimed was inconsistent with his present evidence. The Single Magistrate disallowed the question on the ground that the witness could not be questioned on what he had said in a previous court proceeding. That ruling contradicts the rules of evidence and the Single Magistrate was obviously in error.

GROUND (iv) 	Before the appellant gave his evidence in the lower court he asked the Single Magistrate to summon Corporal Tangaroa to give evidence. It was obvious from the evidence that had already been given that Cpl Tangaroa had been the closest person to the appellant and the complainant when the alleged offence took place, so that his evidence would have been of great importance. Although Corporal Tangaroa had given a statement to the police the prosecution had not called him as a witness, nor had they made him available as a witness for the defence. The Single Magistrate deferred the decision on whether Cpl Tangaroa should be called until the end of the defendant's case. The matter was never addressed again and Corporal Tangaroa was not called.

In the interests of justice, the Single Magistrate should have adjourned the case to enable Cpl Tangaroa to be brought to court to give evidence. The defendant was not legally represented and it was the responsibility of the Single Magistrate to ensure that he received a fair trial. The evidence up to that point clearly indicated that Cpl Tangaroa's evidence was essential to the just decision of the case. In the circumstances, the Single Magistrate should have exercised her power under section 133 Criminal Procedure Code Cap. 17 to summon a material witness.

GROUND (v)	The prosecution called only 3 witnesses: the complainant, his wife, and a friend with whom they were staying. The accused gave evidence himself and called 7 witnesses who supported his version of the events. Not one of the defence witnesses was shaken on cross-examination. That is not surprising, since most of the questions asked in cross-examination were directed only to where the witness and other persons were standing at the time of the alleged offence. The second defence witness, a special constable who denied there had been any assault, was not cross-examined at all. In spite of this, the Single Magistrate found that the defence witnesses were contradictory and unreliable – without explaining why – and accepted the evidence of the prosecution witnesses.

Having read the evidence in print, it is difficult to appreciate how it would be possible for a court to be satisfied of the appellant's guilt beyond a reasonable doubt. Nevertheless, since the Single Magistrate had the advantage of seeing and hearing the witnesses, this Court ought not to interfere with her findings on credibility. All the same, those findings may well have been different had the proceedings been conducted in such a way as to provide the appellant with a fair trial. 

It follows from what has already been said that I am clearly of the view that the proceedings in the court below were a miscarriage of justice. I must therefore allow the appeal and set aside the conviction and sentence. In view of the history of this case and the fact that it is now more than 2 years since the incident took place, I will not order a retrial.

THE HON R B LUSSICK
Chief Justice
(09/04/99)