Ruteti v Republic [2015] KIHC 87; Criminal Appeal 14 of 2014 (19 March 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL APPEAL NO. 14 OF 2014

BETWEEN

MIKARI RUTETI
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before : The Hon Mr Justice Vincent Zehurikize

19 March 2015

Mr Reiati Temaua for Appellant
Mr Taburuea Rubetaake for Respondent

JUDGMENT

Zehurikize, J: This is an appeal against conviction and sentence.

On conviction Counsel for the appellant contended that the appellant, at the trial, was not given ample time to get legal representation. He cited sections 10(2)(c) and (d) of the Constitution and section 176 of the Criminal Procedure Code. The effect of the cited legal provisions is that in a criminal trial the accused shall be permitted to defend himself or by an advocate, at his/her expense.

It appears to me that in any case the Criminal Procedure Code does not apply to Magistrates' Courts. The law applicable is the Magistrates' Courts Ordinance. But be that as it may, there is no law obliging the accused in a magistrates' court, as in the instant case, to be represented by an advocate.

In the instant case, when the charge was read to the accused she appeared to be admitting the case, and for that matter the magistrate would go ahead to enter a plea of guilty and after complying with the process for the accused guilty and impose the appropriate sentence. It is not incumbent on the magistrate to stop the proceedings and go into issues of whether the accused needed legal representation or not.

I am persuaded by the learned counsel that the magistrate was at fault in not adjourning and advising the accused to get an advocate. In any case there is no record to show that the accused indicated that she wanted a lawyer. I reject the submission by Counsel in this respect.

What I notice from the record, however, is that the accused should not have been found guilty on her plea and convicted. The record clearly shows that she did not plead guilty or as it were, the supposed to be plea of guilty was not unequivocal. After the facts were read to her this is what she stated:

"My child was with me while I was drinking and they took him from me at dawn just before day break".

This statement clearly contradicted what was narrated in the facts before Court, where it was alleged that she left the child at home and went on a drinking spree. She introduced the new facts that the child was taken away from her just before day break, implying that this could have been done to reinforce the framing up of the charge against her. In short, having in effect disputed the facts, Court should not have gone ahead to find her guilty of the offence. Therefore the subsequent conviction and sentence were a nullity.

Even if the conviction had been proper I agree with both Counsel that a sentence of 4½ years to a breastfeeding mother who was a first offender and had pleaded guilty was harsh and excessive. However, since I have found that the conviction was a nullity I need not go far into the issues of sentencing. All in all the appeal is allowed on ground that the finding of guilty was illegal and the conviction and sentence had no legal basis.

The appellant is to be released from prison forthwith if she is serving sentence.

Dated the 19th day of March 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge