Aukitino v Republic - Judgment [2015] KIHC 84; Criminal Appeal 5 of 2014 (3 March 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL APPEAL NO. 5 OF 2014

BETWEEN

NAWERE AUKITINO
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before : The Hon Mr Justice Vincent Zehurikize

3 March 2015

Ms Botika Maitinnara for Appellant
Mr Taburuea Rubetaake for Respondent

JUDGMENT

Zehurikize, J: Counsel for the appellant filed this appeal complaining that the trial magistrate did not clearly explain to the appellant the charge laid against him and that did not give the appellant a chance to mitigate. It is also complained that the sentence is excessive.

I have considered submission by Counsel for the State not supporting the conviction. I think the learned State Attorney is correct. The plea of guilty in this case was not unequivocal. There is no evidence on record to show that the charge was explained to the accused as no particulars of offence are indicated. The record simply states:

"Charge: Criminal Trespass c/s 182(2) of the Penal Code".

In recording a plea of guilty the charge must have been explained to the accused and the Court makes sure he understands the charge. In other words, that the accused has understood all the ingredients of the offence. When this is done the Court asks the accused whether he has understood the charge and what plea he intends to take. If he pleads guilty to the charge the magistrate should record the words used by the accused in admitting the offence. The magistrate then goes ahead to enter a plea of guilty. The next thing is for the prosecutor to state the facts which fully disclose all the ingredients of the offence.

The above essential steps were not taken in the instant case.

After stating the facts which must form part of the record, the trial magistrate must again ask the accused whether he has understood the facts. His answer to this must be recorded. If he admits the facts, the trial magistrate will then go ahead to find the accused guilty of the offence and convict him accordingly. This essential step was not done in this case.

After the conviction the trial magistrate must record submissions or statements from the prosecutor and the convict or his counsel in regard to mitigating or aggravating circumstances. Thereafter the trial magistrate can go ahead to impose his sentence bearing in mind the submissions by both sides and all other relevant considerations.

In the instant case, while the appellant said something in mitigation, there was no statement from the prosecution. But most surprisingly the trial magistrate did not give reasons for imposing the sentence of six months' imprisonment. It is not clear whether he took into account or not the fact that the convict said he was drunk. The magistrate simply imposed the sentence of six months out of the blue.

In view of the above I find that since all the ingredients of the offence were not disclosed to the accused, his plea was not unequivocal and it cannot stand. The conviction is hereby quashed and the sentence set aside. Consequently the appeal is allowed. The case file would be remitted to the trial court for expeditious retrial of the case.

Order accordingly.

Dated the 3rd day of March 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge