Republic v Ekebati [2001] KIHC 52; Criminal Case 38 of 2000 (1 June 2001)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 38 of 2000

THE REPUBLIC

v.

BEIA EKEBATI

FOR THE REPUBLIC: Mr David James
FOR THE ACCUSED: Ms Emma Hibling

Date of Hearing: 29 & 30 May 2001

JUDGMENT

The accused, Beia Ekebati, was the High Court driver from some time in 1996 until he was suspended on three-quarter pay by the Chief Registrar, Mr David Lambourne, in April 2000.

Beia said that he was employed by the High Court only as the driver. He was not told his duties at the beginning of his employment. He at first denied that, apart from driving, he had any other duties but when pressed in cross examination he admitted that he had once fixed the Chief Justice's gate and that may be he had done other odd jobs but he has forgotten. Beia said that he had never heard of the National Conditions of Service, let alone ever had his attention drawn to them in relation to his employment.

Mr Lambourne, who gave evidence for prosecution, on the other hand said that the accused was employed as driver and to do "any other duties assigned". Beia was an employee of the High Court and a member of the public service.

Despite the accused's evidence – I give him credit for giving evidence – he was the only witness for the defence – I have no doubt that the accused was employed primarily as the High Court driver but also to do minor maintenance work, odd jobs, which were in his capacity, in and around the courts. He had done such jobs from time to time. If any job were beyond the accused's capacity, then an outside contractor would be engaged to do it but Beia himself did not have the authority to engage an outside contractor.

The second prosecution witness, Iekerua Karaoaba, is the brother-in-law of the accused: he is married to Beia's sister. Iekerua set up in business as a building maintenance contractor in 1999. I imagine through the good offices of the accused, Iekerua did jobs from time to time for the High Court and was paid for them. He used Beia's services to help in the jobs at the Court. Of the business relationship between them Iekerua said:-

He was my employee - not a typical employee, helps me as my brother-in-law. Sometimes I give him money, not as wages, but as a gift.

The accused said he believed he was Iekerua's employee – he believed he had two jobs. The belief that he had two jobs is the nub of the defence, Ms Emma Hibling, defending, told me.

This raises first of all the question as to whether Beia was entitled to have a second job. Under the NCS (D16) he was not entitled. Whether he was bound by the NCS and, if so, how, is a question which I put to the Solicitor General, prosecuting. Mr James could not help me as to what statutory, or other authority the NCS may have: in the absence of statutory authority it appears the NCS bind only when imported into a contract of employment. It does not matter in this case: quite apart from the NCS, no employee is entitled to work in a second job during the working hours of his first job. The accused, I find, knew it. That is why he was anxious in his evidence to shew that he did the work, the subject of the first and third counts, during lunch breaks. Because of the evidence (which I accept) of Iareto Borikabu, the Lands Court clerk who works at the court in Bairiki, I find that Beia did not do the work only during lunch hours: even if he did, he was breaking the implied term of his employment by the High Court that he should give all his time to that job.

The accused has pleaded not guilty to one count of false pretences, one count of attempted false pretences, one count of fraud and one count of attempted fraud.

The Solicitor General agreed that I should treat counts 3 and 4, the fraud and the attempted fraud as alternatives to the false pretences and the attempted false pretences.

Particulars of counts 1 and 2:-

Count 1 ....

Particulars of Offence

Beia Ekebati on or about the month of March 2000 at the High Court in Betio Tarawa, by false pretence, that is, by representing to the High Court a debit note of the amount of $120 purporting to be a bill for work done by Iekerua contract, knowing that representation to be false, and with intent to defraud, caused the money to be paid to Iekerua contract.

Count 2 ....

Particulars of Offence

Beia Ekebati on or about the month of April 2000 at the High Court in Betio Tarawa, by false pretence, that is, by representing to the High Court officials a debit note of the amount of $20 purporting to be a bill for work done by Iekerua contract, knowing that representation to be false, and with intent to defraud, attempted to cause the sum of $20 to be paid to Iekerua contract.

The charges arise out of two incidents, the first in March and the second in April 2000. On the first occasion, Beia was asked to change some locks at the Bairiki Court House. He said he did not know how to do it and asked Iekerua to shew him which Iekerua did (according to Beia's statement to the Police, admitted by consent, on the telephone: according to his oral evidence, Iekerua came to the Court house). The accused then changed the locks. On the second occasion Beia was asked to fix the water pump here at the High Court: he did that by himself without any help.

I have no reason to doubt that the accused did these jobs in the course of his employment by the High Court: they were odd jobs within his capacity to do (even if on the first occasion Iekerua shewed him how to do it). On neither occasion was there any need to call in an outside contractor. Yet on each occasion, the accused said, he spoke to Iekerua and asked him to do the job and Iekerua told him, as an employee of Iekerua Contract (the business name Iekerua uses), to do the work. Accordingly the accused regarded himself, he said, as working for Iekerua when doing the jobs.

Having completed the job he then, on each occasion, wrote out a debit note which he took to Iekerua who signed it. The accused then presented the debit note for payment. In March the claim went right through the bureaucratic process and the accused was paid $114 (the debit note had been for $120), all of which Beia gave to Iekerua. In April the process was almost complete when Mr Lambourne, on being presented with the payment voucher for signature, queried the claim: what had been done was discovered before any payment ($20 had been claimed) was made: hence count 2 is attempted false pretences.

I have to remind myself that the accused does not have to prove anything, that the prosecution must prove each element of the offence charged beyond reasonable doubt, before there can be a conviction. With that reminder I find that the accused carried out the two jobs in the course of his normal duties as an employee of the High Court, not as an employee of Iekerua and he well knew he was doing the work in the course of his normal duties: that, having done the work, he wrote out the debit notes and had Iekerua sign them: the accused then presented each for payment: the first was paid, the second was not.

The Penal Code, section 300:

Any representation made by words, writing or conduct of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence.

The accused represented to the High Court that Iekerua, a contractor, had done the work whereas he had done it himself in the course of his normal duties. That is the false pretence.

The Penal Code, section 301 (in relevant part):-

Any person who by any false pretence –

(a) with intent to defraud, obtains from any other person any money --------, or causes or procures any money to be paid, ---------- for the use or benefit or on account of himself or any other person ..... is guilty of a misdemeanour, and shall be liable to imprisonment for 5 years.

That is what the accused did (count 1) and what he attempted to do (count 2).

I find the accused guilty on counts 1 and 2. I do not bring in verdicts on counts 3 and 4.

Dated the day of June 2001

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE