Republic v Taera [2008] KIHC 27; Criminal Case 31 of 2008 (6 August 2008)

In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 31 of 2008

The Republic

v

Teruka Taera

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Giles O’Brien-Hartcher

Date of Hearing: 6 August 2008

JUDGMENT

Application by Teruka Taera to stay criminal proceedings against him. The grounds:-

1. The offence was allegedly committed on
   31 December 2006.
   
2. Two weeks later, on 14 January 2007, the (accused) was spoken to, a caution statement was taken, and no charge appears to have been laid.
   
3. Three days later, on 17 January 2007, the IO wrote to Officer Commanding the district of Kiritimati Island, submitting the file for consideration to prosecute. The Police investigation was complete.
   
4. A charge was not laid by prosecutor in this Court until
   15 May 2008, 17 months after offence allegedly committed.
   
5. On 17 July 2008, the accused was served a summons to appear in court the next day.
   
6. The matter was first mentioned in court on 18 July 2008, 19 months after the alleged offence was committed. The accused appeared on that day.
   
7. There is considerable delay in bringing the proceedings against the accused, and his ability to defend the charge has been prejudiced by that.
   

Mr O’Brien-Hartcher for the applicant contented himself with pointing to earlier decisions, that the Court has a discretion whether or not to stay a prosecution and asserting that because of the lapse of time his client now has now no clear memory of the matter.

When I asked her, Ms Beiatau could advance no particular reason why the Attorney General had waited 17 months before filing the indictment. All she could say was that office procedures have now improved, that I had refused the stay of prosecution in another case, that the charge is serious and that the accused could not really have forgotten.

As to the first of Ms Beiatau’s submissions I was reminded of what I said in giving judgment in criminal case No. 25/03 the Republic v Ioborau Kaiue and Betero Etuati (delivered 5 August 2003):-

The court does not accept undue delay in bringing on criminal cases for trial: if the Republic delays for no good reason shewn, the Court will strike out the prosecution. ..... That is not to say that the Court is satisfied with the present situation. The aim is to dispose of all criminal cases within 12 months of the alleged offence. We are working towards attaining it. I mentioned the aim during argument and the Solicitor General readily agreed. Mr Lambourne said the procedures within the police for investigating crimes are being improved and should reduce the time between offence and reference to the Attorney General. I am sure Mr Lambourne is keen to speed up procedures in the Attorney General’s office.

As time passes to allow the Police Commissioner and the Attorney General to tighten procedures in their respective domains, the Court will become progressively more sympathetic to applications such as these. All concerned should remember the aim: that criminal cases be disposed of within 12 months.

Since then, in giving decisions on such applications, I have several times referred to the case. That was five years ago! And still there is unacceptable delay for no good reason advanced.

This is honouring neither the letter nor the spirit of S.10(1) of the Constitution:

If any person is charged with a criminal offence ...... the case shall be afforded a fair hearing within a reasonable time .......

As to the second of Ms Beiatau’s submissions, each application must be considered separately on its own merit.

As to the third, the Attorney General when the file first came to his office should have appreciated the seriousness of the charge and speedily filed an indictment. All Ms Beiatau put to me on this point must have been obvious to the Attorney in the early months of 2007 when the police file first came to his attention.

As to Ms Beiatau’s final point, the applicant says his memory is not clear. After nearly 19 months (or even 17 months) I am not surprised that the applicant makes the assertion. Memory fades with time. I accept the assertion.

The application is granted. The criminal proceedings will be stayed.

Dated the day of August 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice