Anderson v The Republic [2005] KIHC 45; 05-04 (20 May 2005)

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

High Court Criminal Appeal No. 5 of 2004

Between:

KIM ANDERSON
Appellant

And:

THE REPUBLIC
Respondent

For the Appellant: Ms Jennifer Troup
For the Respondent: Mr Birimaka Tekanene

Date of Hearing: 19 May 2005

JUDGMENT
(Ex Tempore)

On 17 June 2004 the appellant was convicted in the Magistrates’ Court of an offence against Section 319(1) of the Penal Code, wilful damage to property.

Particulars of Offence

Kim Anderson, on the 15^th day of November 2003 in London in the Xmas Magisterial District willfully and unlawfully damaged the fishing net the property of Tekinene Tongarua.

The Single Magistrate, using Section 45 of the Penal Code, deferred sentence until 16 December. He gave no reason for deferral. By 16 December the Single Magistrate had left Kiritimati. Nothing happened on that day.

A letter dated June 18^th 2004 from the appellant to the Court Clerk, Christmas Island is on the file. The letter asks that the papers be forwarded to the appellant’s lawyer, Mr Banuera Berina on Tarawa “so that an application for appeal can be correctly filed”. The Court Clerk wrote to the Chief Registrar sending over the papers. Whether the papers ever reached Mr Berina does not shew from the High Court file. Having searched the file there is no indication that Mr Berina did institute an appeal.

The appeal has been irregularly instituted but I heard it as though the paperwork had been properly done. Mr Tekanene for the respondent did not object. Ms Troup handed up grounds of appeal:

1. The conviction should be set aside because no sentence has been given and no sentence can now be given as the sentence has been deferred for a period in excess of six months.
   
2. The Single Magistrate acted in such a way as could give an appearance of bias in that he acted as interpreter in a case which was before him for hearing.
   
3. The Magistrate erred in failing to properly consider whether the appellant’s actions were justified for the safety of his passengers and his vessel.
   
4. The Magistrate erred in not applying the International Navigation Rules without properly satisfying himself that they did not apply in Kiribati.
   

I consider ground 1. The intention of Section 45 seems to be to allow a convicted person up to six months grace after conviction to see how he behaves and then to impose any appropriate penalty. That Section 45 is in Part VI of the Code, headed “Punishments” lends weight to the interpretation. I do not know whether this is why the Single Magistrate used the section.

Section 45(2):

Any deferment under this section shall be until such date as may be specified by the court, not being more than 6 months after the date of the conviction, and where the passing of sentence has been deferred under this section it shall not be further deferred thereunder.

Ms Troup argued correctly that subsection (2) makes it too late now for a penalty to be imposed. The appellant has a conviction without penalty: quite common in other jurisdictions. At first I wondered why the appellant was not content to leave it at that. Ms Troup told me that her client, if he has any conviction, be it for however trivial an offence, faces the possibility of deportation from Kiritimati. This is a trivial offence (the owner estimated the cost of repair to the net at $70.00) and it would be monstrously unjust if it were to be used to deport the appellant and I doubt if that ever would happen but the theoretical possibility may remain. It is a sufficient reason why the appellant is anxious to avoid a conviction.

I go on to consider ground 2.

Apparently no interpreter was available to interpret the evidence from Kiribati into English for the benefit of the defendant. The case had already been adjourned once “to make available an interpreter”. So on 17 June the Single Magistrate acted as interpreter. I suppose, although the Single Magistrate did not say so, he was invoking the doctrine of necessity. Although Ms Troup tried to tell me that there must have been plenty of people who could have interpreted, at the time the Single Magistrate was the judge of that. I accept his decision. No indication of actual bias was shewn and I doubt whether he ever gave the impression of bias. I reject ground 2.

On 15 November 2003 the appellant was taking an outrigger out of the lagoon. It is not easy from the evidence and from the Single Magistrate’s judgment to work out the facts. Tekinene Tongarua’s two sons had laid out his fishing net. Besides the appellant’s outrigger, Mikaere’s boat and Beniamina’s boat were in the vicinity of Tekinene’s net. It is not clear whether Mikaere managed to avoid the net altogether. Beniamina did get entangled but the boat was freed without damaging the net. The appellant was not so lucky. The outrigger became entangled. The appellant felt it necessary to cut the net to free the outrigger.

The appellant gave evidence. He did not deny “cutting the net. But I do not agree being wilfully and unlawfully damaged the net. As stated we were approaching the passage that has been normally used as a passage and I have been using it for the 12 years in Kiritimati. And most boats in those 12 years do use that passage. As in a short period of time there were three boats using the passage”. The appellant asserted he had to cut the net as “the boat and passengers on board were endangered”.

The facts are mostly not disputed. The appellant has admitted that he “wilfully” damaged the net: he deliberately cut it. He made that admission and is stuck with it. Did the appellant act “unlawfully”? To be convicted the appellant must have acted both “wilfully and unlawfully”. If the appellant could not have avoided the net, were justified in cutting it, had no alternative, then he was not acting “unlawfully”.

In his reasons for judgment the Single Magistrate canvasses whether the place where this happened was a channel, whether or not the net should have been laid out there. That is not the point. Even if the net should not have been laid out there, no one had a licence to damage it. It is irrelevant whether the appellant should or should not have had the outrigger there. He was there and that is what matters. He is not charged with any offence for being there.

Should the appellant have seen the net, seen it easily enough, in time, to avoid it by changing course or direction? If he could not have avoided it, could he and should he have been able to do as Beniamina did, disentangle the net without damaging it? It is only if these questions are answered against the appellant that he was acting unlawfully. If the appellant had no opportunity to see the net, fouled it and had no alternative but to cut it, then he was not acting negligently and therefore not acting unlawfully.

The Single Magistrate said:

Did the accused unlawfully damage the fishing net? Yes, the accused did damage the fishing net unlawfully. The accused said that the current was moving but having heard the accused pushing the boat over the fishing net, the current was not strong as to endanger the boat nor passengers on board. As in the prosecution witness PW2, he mentioned that one Imatang and Eterom were in the water unwounding the fishing net from the outrigger. It shows that there was no trouble with the current if the fishing net had been reasonably unwound by hand like Beniamina did. This court found that the accused has no good excuse to cut the fishing net and he has therefore unlawfully damaged Tekinene’s fishing net.

I doubt if the Single Magistrate sufficiently considered the questions I have posed above. I should give the appellant the benefit of the doubt.

I need not further consider grounds 3 and 4.

The appeal is allowed, the decision of the Single Magistrate is quashed and the case sent back to the Magistrates’ Court for rehearing in accordance with these reasons.

Dated the 20^th day of May 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice