Republic v Hee Joong Yoon [2006] KIHC 72; 9-06 (26 October 2006)

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

High Court Criminal Case No. 9 of 2006

THE REPUBLIC

v

HEE JOONG YOON
CAPT SUGUN YUN
DAVID PINE

For the Republic: Ms Ruria Iteraera
For the 1st Accused: Ms Taoing Taoaba
For the 2nd Accused: Mr Aomoro Amten

Date of Hearing: 26 October 2006

REFUSAL OF APPLICATION TO AMEND INDICTMENT
(Ex Tempore)

The original indictment was filed on 23rd March and charged offences against all three defendants. The offences are of unlawful entry by foreign fishing vessel within the fishery limit, unlawful fishing by foreign fishing vessel within the fishery limit and unlawful operation of a fish processing establishment. These offences are alleged to have occurred in the waters around Kanton and Kiritimati Islands.

By the end of March the case has been put in the list for hearing at the next session of the High Court on Kiritimati Island. There the prosecution rested until 12th October when the first amended set of charges was filed: two counts of carrying out a prescribed development contrary to the Environment Act. When the case was mentioned on Tarawa on 13th October it was agreed that whether or not to allow the amendment should be argued on Kiritimati. Now finally, dated 22nd October, a second amended set of charges with three counts of carrying out a prescribed development without a development consent, has been filed.

The defendants vigorously opposed both sets of amendments. They say that they have spent months preparing their defence to the original charges. Now at the last minute they are confronted with a quite different set of charges: the original charges under the Fisheries Ordinance, the amended charges under the Environment Act. The defendants are greatly prejudiced.

From what Ms Iteraera has submitted in reply there seems to have been no reason why the Attorney General and his officers should not have prepared the case months ago. The events out of which the charges and this indictment arose took place in February and must have been established quite soon after. The indictment was filed in March. Yet no application to amend was made until October, more than six months later. Had an application to amend been made on Betio the Court would have been more sympathetic. The longer the delay in applying to amend and the closer to trial, the greater prejudice to the defendants and the less likelihood of the Court exercising its discretion in favour of granting the application.

The Republic has had the luxury usually of being allowed to amend an indictment even on the day of trial. That has been so only because counsel for the defence has consented or at least not opposed the application. If counsel do oppose an amendment of substance it is unlikely to be allowed. Unless by consent, an amendment of substance to an indictment is the exception rather than the rule.

The reason is this. A defendant is entitled to know from the time the indictment is filed and served the precise case he has to meet at his trial so that he can prepare his defence. It follows that the prosecution is under an obligation to get the indictment - the charge or charges and the particulars of them - correct before the indictment is filed. If the prosecution does not get an indictment right the first time, then it runs the risk, as in this case, of an amendment being refused.

Because of the unjustified delay and the consequent prejudice to the defendants I exercise the discretion of the Court to refuse Ms Iteraera’s application to amend the original charges.

Note

Having ruled against Ms Iteraera on her application to amend the indictment, on the instructions of the Attorney General she entered a nolle prosequi on the original charges in relation to the defendants Hee Joong Yoon and Sugun Yun but not in relation to David Pine.

Counsel for Hee Joong Yoon then made an application pursuant to section 154(2) and (3) of the Criminal Procedure Code. After discussion with counsel and by consent

ORDER

Order that:

(1) the sum of

(a) $14,560 be paid directly to Hee Joong Yoon for his trouble and expense by reason of the charges;

(b) $2,500 be paid directly to counsel for Hee Joong Yoon, Ms Taoaba on account of her costs;

(c) $500 be paid to the People’s Lawyer on account of cost for Mr Aomoro Amten, counsel for Sugun Yun;

(2) All his documents be returned to the said Hee Yoong Yoon;

(3) The vessel "Well Being" be released forthwith to the said Hee Yoong Yoon.

Dated the 26th October 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice