Republic v Pine [2007] KIHC 46; Criminal Case 09 of 2006 (29 January 2007)

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

High Court Criminal Case No. 9 of 2006

THE REPUBLIC

v

DAVID PINE

For the Republic: Mr Birimaka Tekanene
For the Accused: Mr Banuera Berina

Date of Hearing: 29 January 2007

REFUSAL OF APPLICATION TO AMEND INDICTMENT

On 23rd March 2006 the Attorney General filed an indictment charging three men with two counts of Unlawful entry by Foreign fishing vessel within the fishery limits and one count of Unlawful operation of a Fish processing establishment. One of the men was David Pine.

As the offences were alleged to have been committed "in the waters around Kanton and Kiritimati" the trial of the other two men was to take place on Kiritimati Island at the sittings of the Court there last October. It had been agreed that David Pine be tried separately later on South Tarawa.

On the day of the trial on Kiritimati the Attorney General applied to amend the indictment by substituting charges under the Environment Act. The defendants opposed the substitution. I refused it. Thereupon Ms Iteraera on behalf of the Attorney General entered a nolle prosequi against the other two men on the original charges.

I published my reasons for refusing the application and appended to the reasons a 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....

It should have been clear from my Note that the original charges in the indictment stood against David Pine. His trial was eventually fixed for today, 29th January, on South Tarawa.

Before David Pine was arraigned, Mr Tekanene, now appearing for the Attorney General, applied to amend the indictment to substitute charges identical to the charges the substitution of which I had refused on Kiritimati Island. Mr Berina opposed the substitution. He said he had first been told of the application last night: only three days ago his client had been served with a summons to attend Court today to answer the original charges. I refused the application for the same reasons as I had given on Kiritimati Island: the Attorney General has had nearly three months to apply to substitute different charges against David Pine yet had waited until the day of the trial.

Note

As on Kiritimati, so today, on my refusal of the application to amend Mr Tekanene, for the Attorney General, entered a nolle prosequi.

Mr Berina applied for an order for return of a number of items which he has set out in a letter dated 9th October 2006 to the Director of Public Prosecutions. Mr Tekanene asked for time to consider the application. I adjourned the hearing of Mr Berina’s application until next Friday 2nd February.

Dated the 29th day of January 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice