Boraata v Republic [2010] KIHC 42; Criminal Appeal 02 of 2010 (15 April 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION

High Court Criminal Appeal 2 of 2010

HELD AT BETIO
REPUBLIC OF KIRIBATI

BETWEEN:

TIKORO BORAATA
Appellant

AND:

REPUBLIC
Respondent

For the Appellant: Ms Botika Maitinnara
For the Respondent: Mr Monoo Mweretaka

Date of Hearing: 15 April 2010

JUDGMENT
(Ex Tempore)

I gave judgment in HCCC 177/08 Derek Andrewartha t/a One Stop Shop v Attorney General iro Commissioner of Police on 10 March and adjourned the hearing to allow consideration of an appeal against the conviction on 13 March 2009 of N. Tikoro by the Teraina magistrates.

An appeal has now been instituted. It is well out of time but in view of the circumstances of the case – set out in the judgment – I shall extend time within which to appeal to 9 March 2010. The first two grounds of appeal are:

(1) The Court proceeded without the presence of the appellant and counsel.

(2) No evidence to prove that liquor was sold without a licence.

The first is decisive. The magistrates, when N. Tikoro was before them, gave her an adjournment but said she and her lawyer must come back on the next ship. No exact date was fixed. No one came back. Eventually the magistrates lost patience and heard the case in the absence of the defendant or any representation for her. While the magistrates’ impatience is understandable, as a matter of law they should not have gone ahead to hear the case without at least notifying the defendant of the date.

The appeal is allowed: the conviction and penalty imposed quashed. According to the minutes 30 cartons of vodka had been destroyed. [I was told from the bar table that it was in fact all drunk]. Presumably this was on the assumption that the magistrates had made an order for destruction. That order (if there were one)) is also quashed.

After discussion with counsel, if the prosecution intends to proceed with the charge, the case is transferred for hearing on Kiritimati Island by the Single Magistrate.

To allow for the completion of the civil claim (see last sentence of the judgment) the Attorney General should decide within the next month whether to proceed with the prosecution and so to inform Ms Maitinnara acting for N. Tikoro. If the Attorney General has not notified Ms Maitinnara within that time of his intention to proceed Ms Maitinnara is at liberty to have this appeal called for mention. I shall assume the Attorney General does not intend to proceed and will give judgment for the plaintiff in the civil action.

THE HON ROBIN MILLHOUSE QC
Chief Justice