Republic v Kaiue [2003] KIHC 94; Criminal Case 02 of 2003 (5 August 2003)

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

Criminal Case No. 2 of 2003

THE REPUBLIC

vs

IOBORAU KAIUE

Criminal Case No. 25 of 2003

THE REPUBLIC

VS

BETERO ETUATI

Criminal Case No. 29 of 2003

THE REPUBLIC

VS

TEKARIBWA KIMAERE

For the Republic: Mr David Lambourne, Solicitor General
For the Applicants: Ms Jacqueline Huston, People's Lawyer

Date of Hearing: 28 July 2003

JUDGMENT

Applications in criminal cases to dismiss or permanently stay the charges due to unreasonable delay by the Republic in prosecuting them.

Before the hearing of the applications, the Solicitor General informed the Court that the Republic would not proceed with one of the cases. I noted the nolle prosequi. By agreement, because a prosecution witness had come to Tarawa from Kanton Island, the trial in another of the cases proceeded as far as the completion of her evidence. Resumption will depend on the outcome of the application.

Three applications were heard together. In each case the delay complained of occurred between arrest for the alleged offence and the filing of the indictment, charges, in the High Court:-

HCCrC 02/03
Offence alleged 12 October 2001
Indictment filed 5 February 2003
served Not shewn

HCCrC 25/03
Offence alleged 17 January 2002
Indictment filed 28 April 2003
served Not shewn

HCCrC 29/03
Offences alleged 28 May 2001
5 November 2001
Indictment filed 22 May 2003
served 7 June 2003

The Solicitor General acknowledged that the delay was the responsibility of the police or occurred in the Attorney General's office: the responsibility may have been partly with the police, partly with the Attorney General.

Ms Huston presented a careful, detailed and helpful argument in support of the applications. She relied primarily on section 10(1) of the Constitution. The section is in Chapter II, Protection of Fundamental Rights and Freedoms of the Individual:-

10(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

Ms Huston referred to several authorities from Commonwealth countries, all of which I have looked at:-

Jago v The District Court of New South Wales et ors [1989] HCA 46; (1989) 168 CLR 23

(High Court of Australia)

Regina v Askov et al (1990) 2 SCR 1199

(Supreme Court of Canada)

Regina v Morin (1992) 1 SCR 771

(Supreme Court of Canada)

Naqua v The State (2001) FJHC 119 (16 November 2001)

(High Court of Fiji)

The authorities are helpful but each one of them, at greater or less length, does no more, can do no more, than examine the authorities, set out and canvass guidelines before finally coming to a conclusion on the facts of the particular case.

Guidelines in each are pretty much the same. I take those set out in Regina v Morin and cited by Nazhat Shameem J in the Fijian case:-

The question is, at what point does the delay become unreasonable? While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. The length of delay
   
2. Waiver of time periods
   
3. The reasons for the delay including –
   
   1. inherent time requirements for the case.
   2. actions of the accused.
   3. actions of the Crown;
   4. limits on institutional resources;
   5. other reasons for delay; and
      

4. Prejudice to the accused

Section 10(1) of the Constitution has been considered in two local cases:

Republic v Taabere and Another (1985) LRC (Crim) 8

Republic of Kiribati v Teoiaki and Another (1993) 3 LRC 385

The Solicitor General pointed out that in R v Taabere and in R v Teoiaki the delay considered was between the laying of the charges and the coming to trial, the period referred to in section 10(1) of the Constitution.

I refer to the reasons for judgment of my predecessor Muhammad CJ in Teoiaki's case. I quote two passages with which I respectfully agree:-

All criminal prosecutions cause concern, inconvenience and a certain amount of hardship to those who have to defend themselves. The purpose of the constitutional provisions is that such harm should be kept to a minimum and trial be brought on within a reasonable time. The question as to what is meant by 'within a reasonable time' has arisen here and elsewhere where similar constitutional provisions exist. It would not be proper to draw a line and say that beyond such and such period it would be unreasonable. Again the local conditions must play an important role in deciding the questions and following legal authority strictly from other jurisdictions on this point could create a different situation.

We have to strike a balance between the necessity of having an effective system of administration of justice and protection of the rights of the individual as guaranteed under the Constitution. Kiribati is a young country with its own peculiar problems...... We have to live with these constraints and provide as effective a system of criminal justice as we can and view the constitutional provisions in the light of our own circumstances (at 387).

It is not in the public interest that people charged with criminal offences should not be tried. It is unjust that those who are guilty of serious offences should go free without even being tried. However, there is a presumption of innocence and these applicants are entitled to be treated as innocent until found guilty after a fair trial and if such trial cannot be afforded without any fault on their part then they should remain innocent. The purpose of the constitutional provisions is that no innocent person should suffer unduly (at 389).

Those are relevant considerations whenever the delay occurred.

At present delay after the filing of the indictment is unlikely to be long. The High Court has an elementary system of case flow management. Once proceedings are instituted the Court supervises progress of all cases, criminal, civil and other, to make sure the proceedings move with reasonable speed and to avoid cases "falling between the cracks" and, forgotten, lying indefinitely. The Court does not accept undue delay in bringing on criminal cases for trial: if the Republic delays for no good reason shewn, the Court will strike out the prosecution.

Technically, because of practices which have grown up here, section 10(1) does not protect the applicants. Their cases can be given "a fair hearing within a reasonable time" after the filing of the indictments.

Nevertheless as a matter of fairness the guidelines enunciated in R v Morin and the considerations canvassed by Muhammad CJ require observance.

The times in the three cases from alleged offences to the present are respectively, 21 months, 18 months and 26 (first count) and 20 (counts 2 and 3) months. Is this acceptable?

The interest of the community in having brought to justice those guilty of crimes always must be kept in mind. The court must hold a balance between that interest and the interest of the accused in a speedy and fair trial.

There is, must be, more or less delay in every jurisdiction. As examples, I have enquired of friends, barristers, in two other jurisdictions, about delay. In Singapore, a well-organized place with a well-funded Judiciary, the delay in criminal cases is only a matter of months. In New South Wales I am told there is quite often a delay of more than a year or even two years in indictable matters.

Given the situation in Kiribati, the resources available to the Commissioner of Police and to the Attorney General, the delay in none of these cases is so undue as to justify granting a stay. The delays are too long and to be regretted but not uncommon. I cannot grant the applications on the ground of delay.

That is not to say that the Court is satisfied with the present situation. The aim is to dispose of all criminal cases within 12 months of the alleged offence. We are working towards attaining it. I mentioned the aim during argument and the Solicitor General readily agreed. Mr Lambourne said the procedures within the police for investigating crimes are being improved and should reduce the time between offence and reference to the Attorney General. I am sure Mr Lambourne is keen to speed up procedures in the Attorney General's office.

As time passes to allow the Police Commissioner and the Attorney General to tighten procedures in their respective domains, the Court will become progressively more sympathetic to applications such as these. All concerned should remember the aim: that criminal cases be disposed of within 12 months.

There is another point. During her argument Ms Huston brought to light the omission of the police to observe section 23 of the Criminal Procedure Code:-

When any person has been taken into custody without a warrant for an offence other than murder or treason, the officer of or above the rank of sergeant or the officer in charge of the police station to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate magistrates' court within 24 hours after he has been so taken into custody, inquire into the case, and unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognizance with or without sureties, for a reasonable amount to appear before a magistrates' court at a time and place to be named in the recognizance, but where any person is retained in custody he shall be brought before a magistrates' court as soon as practicable: .........

Each applicant in his affidavit deposed that he had neither been brought before a magistrate's court nor charged with an offence. The Republic has not contradicted the depositions.

The Solicitor General acknowledged that the police are not following the procedures laid down in section 23: because of lack of training for the police and resources etc.

The point has not been taken before. It is well taken now. The section is not there for fun: it should not be a dead letter. Parliament enacted the section and it is a corollary of section 10(2)(b) of the Constitution:-

(2) Every person who is charged with a criminal offence -

(b) shall be informed as soon as reasonably practicable, in detail and in a language that he understands, of the nature of the offence charged.

There is another good reason why section 23 should be enforced. I use these applications as examples. If the proper procedures had been followed the three applicants would have been brought before a magistrates' court. Pursuant to section 76 of the Code each would have been charged with an offence.

Section 76 is a long, detailed section providing for persons arrested to be brought to court and charged.

Time under section 10(1) of the Constitution would have started to run from the time when each applicant was brought before the Court. In these three cases no court appearance, no charge. The Solicitor General could argue that time under section 10(1) starts to run only from the time the indictment is filed. That was after a long delay since arrest. The argument allows the Republic to take advantage of its omission to follow sections 23 and 76 of the Code.

So long as the sections remain in the Code they should be observed. The Court cannot indefinitely countenance non-observance. I have used the word "should" rather than the word "must" because it would be wrong, the sections having been ignored for so long, suddenly to require observance without some period of grace.

Now that attention has been drawn to the failure to follow the procedures laid down in the Criminal Procedure Code Parliament may decide either to repeal or to amend some parts of it. The view could be taken that many of the provisions of the Code are inappropriate in Kiribati. They are more appropriate in places like New Zealand, Australia or England rather than here: perhaps they should be modified for Kiribati.

In the absence of repeal or amendment, the Court will assume that Parliament affirms the Code as it is. In that case if procedures are not followed criminal proceedings may be stayed.

The Court will allow the authorities a reasonable time to consider the position but if by the end of the year the Code remains in its present form the Court will assume that Parliament is satisfied with it as it is and will have no alternative but to require adherence to its provisions in relation to all offences alleged to have been committed after 1 January 2004.

Although the three applications are dismissed it was appropriate these matters to our attention. That they have been argued should lead to improvement in procedures and speedier justice for those charged with offences.

Dated the 5^th day of August 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice