Republic v Tioti - Memorandum [2006] KIHC 67; 11-06 (22 June 2006)

IN THE HIGH COURT OF KIRIBATI
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case 11 of 2006

THE REPUBLIC

v

ITIMAERA TIOTI

For the Republic: Ms Ruria Iteraera
For the Accused: Mr Karotu Tiba

Dates of Hearing: 19, 20 & 22 June 2006

MEMORANDUM

The accused was charged with murder. Last Monday, 19th June, I heard two witnesses for the prosecution. They gave evidence of events after which the victim was dead.

The prosecutor, Ms Iteraera, said she was closing the prosecution case. I pointed out to her that she had called no evidence to prove the cause of death. Dr Bwaabwa Oten, the medical officer who was said to have examined the body is in Fiji and not available. Ms Iteraera argued that the facts spoke for themselves. I accept (but not having heard from the defence) that the victim probably died as a result of the injuries inflicted on him by the accused but, without a medical opinion, I could not come to that conclusion beyond reasonable doubt.

I allowed Ms Iteraera an adjournment of three days to find out if Dr Oten would be returning to Kiribati today. He is not.

When the trial was resumed this morning Ms Iteraera closed her case and immediately entered a nolle prosequi. She said she had discussed the matter with the Attorney General and had his express instructions.

Section 68(1) of the Criminal Procedure Code:-

In any criminal case and at any stage thereof before verdict or judgment, as the case may be, the Attorney-General may enter a nolle prosequi, either by stating in court or by informing the court in writing that the Crown intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered ..... but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.

Despite the final part of section 68(1), when I asked her, Ms Iteraera disavowed any intention by the Republic to try again when Dr Oten is back in Kiribati.

The failure of the prosecution was entirely the responsibility of the Republic. In a murder case it is always necessary either to call medical evidence as to the cause of death or to have it agreed with the defence. Dr Oten was in Kiribati a few weeks ago and gave evidence at another trial. The Republic could have asked for this trial to have proceeded either immediately before or immediately after the other while Dr Oten was available. Alternatively the Republic could have applied to have the trial when Dr Oten is back here again. It did neither and went ahead to what was inevitably failure.

In these circumstances I would almost certainly regard it as an abuse of process if the Republic were to charge this man again.

Dated the 22nd of June 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice

TO: The Hon the Attorney General
Mr Karotu Tiba