Republic v Tumoa [2009] KIHC 40; Criminal Case 29 of 2009 (1 October 2009)

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

HIGH COURT CRIMINAL CASE 29 OF 2009

THE REPUBLIC

V

RAIKAON TUMOA

For the Republic: Mr Birimaka Tekanene
For the Accused: Mr Mantaia Kaongotao

Dates of Hearing: 1 October 2009

JUDGMENT
(Ex Tempore)

Application by the prisoner for a stay of proceedings on account of delay in filing the indictment.

The applicant is charged with accepting a secret commission some time between 22 December 2006 and 13 February 2007. The charge was laid on 28 May 2009 – a delay of over two years.

Mr Tekanene has advanced these reasons for the delay:

7. Though the office had tried to rectify the problem that resulted in criminal cases being delayed, the reality of the situation remains, this is due to a number of issues of which some of the most obvious ones are:-
   
   1. The limited number of personals
      
   2. The Office not only have to worry about the filing of charges but at the same time to ensure that Republic/State is represented in other litigations such as land and civil matters both at the Magistrate Court and in this Honourable Court;
      
   3. This particular case according to its internal movement was handled by at least five lawyers – the only reason [from experience] that Office can offer as an explanation to this is that when the matter was given to one lawyer, it often get push aside when other pressing legal issues were given to the same lawyer. The most priority matter is to make sure that the Republic/State is represented in any court proceedings;
      
   4. At the same time, noticeably the Office is beginning to realize the increase in both land and Civil Litigation at the Magistrate Court and in this Honourable Court;
      
   5. Once again, the Office having a limited resource would diverted its resource to the court proceedings and any other pressing legal issues such as negotiations and many more;
      
   6. The Office had paid the price in cases that have been delayed, however, it is important to note that it has been the position of this Office to ensure that no one is prejudice due to procedural delays.
      

These are all matters which could be rectified by the Attorney General. Other people should not be prejudiced because of them.

The applicant in his supporting affidavit:

2. I recalled that sometimes in early 2007, the police came for this charge.
   
3. I thought they charged me for having my personal stuff which were brought by a one Korean fishing vessel without a freight. I had kept all my receipts and everything to prove my purchase.
   
4. It is now more than 2 years after that and no charge was raised until I received a writ of summon last week.
   
5. I was surprised to learn when I came back from an overseas official trip I was summoned for this criminal charge against me.
   
6. I forgot all my stuff as well as my receipts. I found it hard myself trying to recall the actual events.
   
7. There is considerable delay in bringing the proceedings against me and my ability to defend the charges has been prejudiced by that.
   

The sympathies of the Court are with the applicant. I note that the applicant has continued to hold a senior and responsible position in the Government.

During the last sittings of the Court of Appeal their Honours even though dismissing a number of appeals against the granting of stays made some most helpful remarks as guidance to this Court (CA 3/09 R v Katiebwa Karaiti and Others). I am most appreciative of the advice. The nub of it is in para [8]:

[8] There is thus a balance to be struck between two public interest considerations. One is that those who have or are alleged to have committed a crime should be brought to trial. The other is that persons alleged to have committed a crime should not be prejudiced in their defence by prosecutorial delay. Striking the balance in an individual case will depend on a consideration of all the facts of the matter.

I have considered carefully all aspects of the present application before coming to a decision.

The application is granted: the prosecution will be stayed.

THE HON ROBIN MILLHOUSE QC
Chief Justice