Republic v Mwamwau [2015] KIHC 44; Criminal Case 40 of 2011 (2 July 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 40 OF 2011

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

TAROTA MWAMWAU
ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

2 July 2015

Ms Pauline Beiatau for Prosecutor
Mr Raweita Beniata for Accused

JUDGMENT

Zehurikize, J: I have considered submissions by both Counsel. From the record the offences are supposed to have been committed in October/November 2010. But the charge was not filed until 3 August 2011 a period of about 10 months.

The case was last mentioned on 11 October 2011 when the Chief Justice ordered that the Prosecution should advise on its readiness for trial. This was after it was clear that the Prosecution had not made any disclosure. The Prosecution did nothing until 18 March 2013 when they filed an amended charge sheet substantially departing from the original charge although the amount of money in issue was the same.

It appears to me this was more of nomenclature than an amendment decided after new evidence had been discovered. It was merely substituting some charges for the original charges arising from the same evidence. Why the Prosecution did this is not clear. But what is clear is that the accused had admitted conversion of the money and promised to make repayment which she did as per attached receipt of 21 July 2011.

It appears to me that after the accused had repaid the money the Prosecution felt disarmed and thought to fix her with new charges indirectly raising the same issue of that money. But despite amending the charge the Prosecution never thought it necessary to get the accused to plead to the new charge. They kept quiet until the Court decided to fix the case.

In my view the continued trial of this matter cannot be said to be fair because after more than four years the accused is supposed to be confronted with fresh charges for which she cannot competently defend herself. All she knows is that she repaid the money for which she was originally charged. Confronting her with the recently designed charges would only act to embarrass her and after such a long time she may not easily and adequately defend herself to such charges.

In the premise I find that no fair trial would be met in this case. The delay by the Prosecution in bringing the case in Court, its failure to fix the case for hearing and even for plea to the new charges for all this period is an affront and offensive to the Court's sense of justice.

Consequently this case is stayed as prayed. The accused is discharged of these offences and set at liberty forthwith.

Dated the 2nd day of July 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge