Republic v Teuatabo [2005] KIHC 66; 01-05 (26 April 2005)

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

High Court Criminal Review No. 1 of 2005

THE REPUBLIC

vs

MANIKAA TEUATABO

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Taoing Taoaba

Date of Hearing: 26 April 2005

JUDGMENT

Application for review by the Republic against the Single Magistrate’s finding no case to answer at the end of the prosecution. The Respondent had been charged with assault pursuant to section 237 of the Criminal Code and had made the submission. The case for the prosecution was that the respondent attacked a woman working in the canteen at Customs for not complying with his request for a piece of cloth. She suffered some injuries, not too serious. Evidence was given by the woman, by a witness to the incident and by a doctor who examined the woman.

From the reasons by the Single Magistrate it seems that he made the ruling of no case because of inconsistencies between the evidence of the prosecution witnesses. He does not refer to the credibility of the witnesses so I assume he made no findings about credibility, one way or the other.

Archbold (2003 edition) paragraph 19-166) finds assault as “any act – and not a mere omission to act – by which a person intentionally – or recklessly – causes another to apprehend immediate unlawful violence.”

When the term “assault” is used to include a battery, it may be defined as an act by which a person intentionally or recklessly causes the complainant to apprehend immediate unlawful personal violence or to sustain unlawful personal violence ..... as is usually the case, the word “assault” is used to mean a battery it simply means an act by which a person intentionally or recklessly applies unlawful force to the complainant ..... provided those ingredients are proved, the offence will have been committed however slight the force. (Paragraph 19-166a).

Assault in the context of section 237 of the Penal Code undoubtedly includes battery. To sum up assault means the application of force, however slight, with hostile intent to another person.

In this case there seems to have been ample evidence of assault. Absent any finding by the Single Magistrate that he did not believe the prosecution witnesses he ought to have allowed the trial to proceed: he should not have made the finding of no case to answer.

Ms Beiatau referred to the principles on which an application of no case should succeed. The principles are set out in George Charles Galbraith (73 CAR 124 @ 127):-

How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is h is duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

Of course in Kiribati we sit without a jury so the explanation in Galbraith has to be modified but it comes to this: if at the end of the prosecution there is believable evidence which would be sufficient to prove the prosecution case then the trial should be allowed to go on.

Perhaps the Single Magistrate had in mind that this was the more serious charge of assault occasioning actual bodily harm. When that offence is charged there has been some specific injury. The respondent is perhaps lucky that he is not being charged with assault occasioning actual bodily harm as there is evidence of injury. Be that as it may, he is being charged only with assault and that is the only charge which we may now proceed against him.

The application is granted, the finding of the Single Magistrate that the respondent had no case to answer quashed and the case sent back to the Magistrates’ court for rehearing in accordance with these reasons.

Dated the day of ........................ April 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice