Bakeua v Republic [2012] KIHC 22; Ciminal Appeal 14 of 2011 (7 November 2012)

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

HIGH COURT CRIM APPEAL 14 OF 2011

BETWEEN:

TAATU BAKEUA
APPELLANT

AND:

REPUBLIC
RESPONDENT

FOR APPELLANT: MAERE KIRATA
FOR RESPONDENT: MONOO MWERETAKA
Date of Hearing: 10th October 2012

JUDGMENT

The appellant, Taatu Bakeua, appealed against both his conviction and sentence imposed by the Magistrate Court in Bai Cri 586/11. There are five grounds of appeal quoted below:

1. That the Magistrate erred in law and as well as in fact in convicting the accused without offering any written judgment supported by its reasoning.
   
2. That the Magistrate erred in law in convicting the accused by failing to establish the guilt of the accused beyond reasonable doubt.
   
3. That the Magistrate erred in law in convicting the accused without ascertaining the accused's mens rea.
   
4. That the Magistrate erred in law and in fact by failing to take into account relevant considerations prior sentencing the accused.
   
5. That the sentence is manifestly excessive in the circumstances.
   

BRIEF FACT:

The appellant was charged with section 3(a) and (c) of the Manufacture of Liqour Act 1997. He pleaded not guilty to both charges and a trial was conducted. After the trial the Magistrate found him guilty and fined him $1000 to be paid in 4 months and in default 3 months imprisonment.

GROUND 1:

'That the Magistrate erred in law and as well as in fact in convicting the accused without offering any written judgment supported by its reasoning.'

The appellant submitted that the conviction should fail as the Magistrate Court had failed to state its reasons for its judgment. The judgment has only two words 'Guilty and Convicted'. The appellant referred this Court to section 15(7) of the Magistrate Court Rules which states as follows:

"The court shall then consider the matter and may then convict the person charged or dismiss the charge. The Court shall thereupon declare aloud, and having done so, record its decision and any punishment imposed or other order made by it in consequence of such decision. The Court shall record the reasons for its decision to convict or dismiss the charge."

The appellant's submission was that the above requirement has not been followed by the Magistrate Court therefore its judgment should be set aside as invalid.

The Republic, on the other hand, conceded that the Magistrate had failed to state its reasons for its judgment but that this should not affect the Magistrate's decision. It was contended by the Republic that there was enough evidence put before the Court at that time for the Court to convict the accused and that the Magistrate had based its findings on those evidences when convicting the accused.

The Republic prayed to this Court not to quash the decision of the Magistrate but to confirm it based on the evidences from the minutes.

I will state my decision on this ground later after considering the rest of the grounds against conviction.

GROUND 2

'That the Magistrate erred in law in convicting the accused by failing to establish the guilt of the accused beyond reasonable doubt'

The appellant argued that the element of possession was not proved. For possession to be proved the status of the accused's mind at the time of the offence should be looked at; that the accused has to know that possession of liquor without a license is illegal, that is the knowledge of the accused is crucial to the element of possession. Ms Kirata, Counsel for the appellant referred this Court to the appellant's statement in the minute where it stated that 'he did not know that the making of liquor is illegal'. It showed that even though the appellant had the bucket of liquor in his house but he did not know that it is illegal to possess it, therefore possession is not proved.

Ms Kirata further argued that there was doubt in the evidence of the prosecution as to who actually possessed the liquor, whether it was the appellant, PW2 (Prosecution Witness 2) or PW3 (Prosecution Witness 3). That there was no evidence to prove that the appellant did actually contribute or assisted the making of the liquor and that there was also no evidence to suggest that the appellant was the one who actually put the liquor at his own house.

Submission from the Republic stated that the evidence was very clear, that the bucket of liquor was found at the appellant's house. The contention of the appellant that he did not know that possession of liquor is illegal is not a defense. Section 7 of the Penal Code was referred to as an authority of the Republic's argument. This section states that 'ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.'

The Republic further argued that knowledge is not the element of possession and that the definition of possession under the Penal Code should be adopted in this case. Section 4 of the Penal Code defines possession as follows:

a)"be in possession of" or " have in possession" includes not only having in one's own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;

b) if there are 2 or more persons and any 1 or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody or possession of each and all of them."

I found the Republic's submission convincing. Knowledge is not an element of this offence. The definition of possession in the Penal Code is to be adopted and 'part a' of the definition is relevant to this case. I also agree with the Republic's submission that ignorance of the law is no defence, therefore the appellant's argument that he did not know that possession of liquor is illegal must also fail. The evidence is very clear that the liquor was found in the house of the appellant. The appellant knew that the liquor was made and kept at his house as stated in the evidence of the Defence Witness 1 (DW1) and Defence Witness 2 (DW2). The argument for the appellant that it was not clear who actually possessed the liquor, whether it was PWI, or PW2 or PW3 is confusing as according to the minute there was only one witness for the Prosecution but two witnesses for the defence. Counsel for the appellant may have confused the number of witnesses the prosecution had.

Ground 3

'That the Magistrate erred in law in convicting the accused without ascertaining the accused's mens rea.'

The appellant's submission on this ground is in relation to the fact that he did not know that possession of liquor is illegal. Same arguments were put forward for this ground as was discussed above. This Court's finding is as stated above as well.

Ground 4 and 5

4. That the Magistrate erred in law and in fact by failing to take into account relevant considerations prior sentencing the accused.
   
5. That the sentence is manifestly excessive in the circumstances.
   

The appellant complained that the Magistrate failed to consider other relevant factors when sentencing him. Such factors as the accused being a first offender, that he has a family to support, whether he has means to pay fine. Ms Kirata submitted that these factors were put before the Court but the Court had failed to consider them. As a result the appellant complained that the sentence imposed is manifestly excessive. The Republic contested that the Court did consider the previous conviction of the accused before announcing its sentence. As for the other factors, they were not raised to the Court. The appellant had failed to raise these factors to the Court. Section 269 of the Criminal Procedure Code was referred to by the Republic to argue their point that the Court had taken consideration of the evidences as it thinks fit before passing its sentence. It is stated in section 269 that 'the Court may, before passing sentence, receive such sentence as it thinks fit, in order to inform itself as to the sentence proper to be passed.'

Looking at the record it shows that none of these factors were put forward by the accused. Previous conviction of the accused was the only information the Court had. The Republic was correct in pointing this out but it seems to me that the mistake lied with the Magistrate Court. From the record the Magistrate had failed to give an opportunity to the accused to make submission on these mitigating factors. The record shows that the Magistrate Court convicted the accused and sentenced him immediately without affording him this opportunity. The law is very clear in ensuring that Courts are equipped with appropriate information before passing sentences. For this reason the Magistrate had erred in law in not providing the accused the opportunity to raise these relevant circumstances.

The next issue to consider is whether the $1000 fine to be paid in 4 months and in default 3 months imprisonment is manifestly excessive that this Court ought to interfere.

Counsel for the appellant has indicated that the many cases that have been dealt with by the Magistrate Courts, the average fine is $500. Only one case was referred to by the appellant which is R v Kamraratu Kabure, CN 793/2010 where a fine of $500 was imposed.

The principle in the case of Berekame v DPP [1986] SBHC was also brought to the attention of this court by the Republic. Such principle is as follows;

"A court of appeal will not interfere with the trial judge's discretion in passing sentence unless it is manifestly excessive or manifestly insufficient because, for instance, the judge has acted on a wrong principle or has overlooked or understand or overstated or misunderstood some salient feature of the evidence."

This Court has found that the lower Courts had failed to consider relevant circumstances of the accused before passing its sentence therefore this Court must interfere with the trial judge's discretion in passing this sentence. As a first offender this sentence is regarded as manifestly excessive and should be replaced with a $500 fine to be paid within 4 months and in default to be imprisoned for 2 months.

Decision regarding Ground 1

After careful considering of the evidence before the Magistrate Court as stated in the minute, and after careful consideration of the appellant's other grounds of appeal against conviction, I found that even though the Magistrate Court had failed to state its reasons for its conviction there is enough evidence to convict the accused beyond reasonable doubt. For this reason this Court will confirm the conviction of the accused.

Order

1. Appeal against conviction is dismissed.
   
2. Appeal against sentence is allowed and decision of the lower Court regarding the sentence is hereby quashed and replaced with a $500 fine to be paid within 4 months, in default 2 months imprisonment.
   

Dated 7th November 2012.

...........................................
TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT