Republic v Namai [2010] KIHC 92; Criminal Case 52 of 2010 (12 October 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO

High Court Criminal Case 52 of 2010

THE REPUBLIC

V

TAURO NAMAI

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Taoing Taoaba

High Court Criminal Case 53 of 2010

THE REPUBLIC

V

KAREREITI AMOTA

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Debrah Mercurio

High Court Criminal Case 55 of 2010

THE REPUBLIC

V

KONONO TEKAITI

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Raweita Beniata

High Court Criminal Case 56 of 2010

THE REPUBLIC

V

TERURU OBETA

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Maere Kirata

Date of Hearing: 7 October 2010

JUDGMENT

In each of these four cases separate (oral) application to stay the indictment for being an accessory after the fact to murder. The four applicants were, some time ago, jointly charged with the murder of Ieeru Riiro. On the 1st September each was found not guilty but Teruru Obeta was found guilty of assault. These reasons should be read in conjunction with the Judgment in that trial.

In support of the application on behalf of Karereiti Amota Ms Mercurio has made written submissions. Counsel for the other three applicants have adopted the submissions and added nothing. Ms Beiatau for the respondent Attorney General has made written submissions contra. Both sets of submissions have been most helpful: I appreciate the industry of counsel in preparing them.

Ms Beiatau asked that I give an authoritative decision, carefully researched, closely reasoned and supported by ample authority. Even if my capacity were sufficient to satisfy her request there are three simple points, sufficient for me to come to a conclusion. In any judgment a judge should never say more – either on fact or on law – than is necessary to justify his or her conclusion.

The three points are autrefois acquit, double jeopardy and prejudice.

The touchstone is fairness. As Wilson J, in a similar context, put it in Barton v The Queen [1980] HCA 48; (147 CLR 75 @ 111):-

The concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused.

Is what is being done fair to the accused? At the same time bearing in mind that the community is entitled to see those charged with crimes brought to justice. There must always be a balance between the two considerations but with the balance slightly in favour of the accused.

1. Autrefois acquit
   

"The test (for autrefois acquit): The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal for the previous charge necessarily involves an acquittal of the latter". (10 Halsbury, 3rd edition, para 737 @ 406).

During the course of the trial for murder I was in some doubt as to whether being guilty as an accessory after the fact might not be an alternative verdict. For that reason I rejected Ms Mercurio's submission that her client had no case to answer. At that stage of the trial I thought a verdict of being an accessory might be open. I therefore allowed the case against Karereiti her client, to continue. Having heard further argument, at the end of the trial, I changed my mind concluding that being an accessory "is a separate offence not subsumed within murder".

That is the test which Halsbury lays down: the facts to be relied on to prove an accessory are not the same as those to prove murder. Therefore the applicants cannot rely on the doctrine of autrefois acquit. Ms Beiatau's argument on this point succeeds as Ms Mercurio conceded.

2. Double Jeopardy
   

Having rejected Ms Mercurio's submission that her client had no case to answer and having mused that the verdict of not guilty to murder but guilty of accessory after the fact may have been open, her client – and the other applicants – had to go through the trial defending themselves as well as they could against the possibility of that verdict being entered against them. Now they are confronted with that charge which, if it were to go ahead, is the same as they may, for all they knew, have been confronting in the first trial. They are put in double jeopardy. The Law disapproves of it: regards it as oppressive.

3. Prejudice
   

This is the clincher in favour of the applicants. In my judgment I said of each of applicants that he was "an accessory after the fact but not charged".

Having come to so definite a conclusion, how could I rid my mind of it and now give each a fair trial? I could not come to the trial with an open mind. It is not possible. Even if I could the appearance of prejudice would remain. I am the only judge in Kiribati who could try the charges. There is no other judge. It would be impossible now to give the applicants a fair trial or one which would look fair.

I have a discretion. I exercise it in favour of the applicants. Each application succeeds. The indictment against each applicant is stayed.

Dated the 12th day of October 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice