Mikaere v Republic [2014] KIHC 37; Civil Case 92 of 2003 (9 September 2014)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 92 OF 2013

BETWEEN

KARARAUA MIKAERE
APPLICANT

AND

REPUBLIC
RESPONDENT

Before: The Hon Mr Justice Vincent Zehurikize

9 September 2014

Mr Aomoro Amten for Applicant
Mr Taburuea Rubetaake for Respondent

RULING

Zehurikize, J: This is an on spot decision of the Court.

I have considered submissions by both Counsel and perused their earlier written submissions. The gist of the applicant's case is that because of the delay he has forgotten the details of the event – how the accident happened. The second reason is that he cannot trace the two witnesses being the people who were sitting next to him when the accident took place. That these witnesses made statements to the Police and that even the prosecution indicated they cannot trace them.

The gist of the reply is that a period of 15 months before bringing the charge is not too long. The delay is explained by Counsel as logistics in the Police force.

Counsel for the State further attacked the application on the ground that it does not disclose the law under which it is brought. He prayed the application be struck out.

This Court has time and again pointed out that it is bad practice for Counsel to just file an application without disclosing the enabling law under which it is brought because this leaves the Court and the opposite party in darkness as to the legal basis of the proceedings.

In the instant case reference was made to S.10 of the Constitution. While this section provides for one of the protected rights in Chapter 2 of the Constitution, it does not lay down the procedure. The procedure for enforcement of the protected rights under the Constitution is to be found in S.17 of the Constitution.

However this provision is permissive. Under S.17(1) of the Constitution one can have his rights enforced by any other action which is lawfully available to him. Further under the proviso to subsection 2 of S.17 the Court may refuse to entertain an applicant under that section if there are other alternative remedies.

I do find that the applicant in this case did not bring this action under S.17 of the Constitution. In fact Counsel contends that he brought this application under common law. But common law principles per se are not procedure. However, in matters of this nature recourse could be had to S.300(1) of the Criminal Procedure Code and in Criminal Case No. 48 of 2011 The Republic v Li Jian Pei and Another, this Court found that one of the powers exercised by the High Court of Justice in England in its criminal jurisdiction is power to stay proceedings. Thus this Court has power to exercise similar powers by virtue of S.300(1) of the Criminal Procedure Code.

However, this power must be used only in deserving cases. The major consideration is whether by proceeding with the criminal trial the applicant will not get a fair trial. In the instant case, the delay complained of is for a period of 15 months before bringing the charge to Court from the date of the incident. The applicant claims to have forgotten the events and that he cannot trace the two people who were seated with him when the accident took place.

It should be noted that in all criminal cases the burden of proving the guilt of the accused is on the prosecution. The accused has no burden to prove his innocence. Surely if the two possible witnesses who are also for the prosecution cannot be found how can this be prejudicial to the defence? The burden is on the prosecution to prove his guilt.

I do not find it a genuine reason that the applicant has lost his memory of the incident so much so that if the case is tried he will not get a fair trial. In any case it is for the prosecution to recount the happening of the accident so as to incriminate the applicant. He can after all refresh his memory by asking to peruse his caution statement. It is not in every case where the defence witnesses cannot be found that the accused trial will be prejudiced. It is a question of fact in each case.

In Li Jian Pei (supra) this Court found that the accused would not get a fair trial after the death of his witness because of the peculiar facts of that case. The prosecution had taken more than five years before instituting the criminal proceedings from when the offence was allegedly committed. The false declarations for which the applicant was being charged were as a result of information the applicant got from the deceased in order to get the Kiribati Passport and Citizenship. The witness died some time after five years even before the State filed the case in Court. There was no way the accused could explain the basis of his declaration after the death of a witness who knew the family history (family tree). Similar situation does not apply in this case. This is just an accident case which relies on eye witness, among other evidence, as to what happened.

If the alleged two eye witnesses who were seated with the applicant cannot be found, it is in fact the prosecution case which, in my view, will be prejudiced.

All in all I find no merit in this application which is hereby dismissed. The criminal trial should proceed as soon as possible.

Dated the 9th day of September 2014

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge