Republic v Afonso - Ruling [2016] KIHC 5; Criminal Case 29 of 2016 (7 June 2016)

IN THE HIGH COURT OF KIRIBATI 2016

CRIMINAL CASE NO. 29 OF 2016
(HELD ON KIRITIMATI ISLAND)

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

JOAO AFONSO
ACCUSED

Before: The Hon Chief Justice Sir John Muria

6 &7 June 2016

Ms Pauline Beiatau for Prosecutor
Ms Taoing Taoaba & Mr Aomoro Amten for the Accused

RULING

Muria, CJ: At the close of the prosecution case the defence made a no case submission in respect of counts 2, 3 and 4 of the charges against the accused.

The submissions of Ms Taoaba in respect of counts 2 and 3 is that the offences are in relation to a breach of the Customs Ordinance and the provisions of the Customs Ordinance must apply. One such provision relates to the power of the police officer to board the accused’s yacht and conducted searches for drugs and other prohibited items on board the vessel. Counsel submitted that the requirement of a writ of assistance is needed.

The offence in counts 2 and 3 are a result of the entry and search made on board the accused’s yacht by the police officer who obtained information from Tarawa.

The search of a premises under Customs Ordinance requires a Warrant. A customs officer who believes on good grounds that prohibited imports, or restricted imports, or goods attracting customs duty are suspected to be located in a premises the officer may apply for a search warrant to search the premises and if he requires assistance from the police may also apply for writ of assistance. See Sections 114 and 202 of the Customs Ordinance. Armed with those legal authorities, the Customs Officer or together with the police officers are entitled to enter and search the accused’s premises on board his yacht. This is so normal criminal investigal process. To enter the premises of another person the law says that one must have the authority to do so, otherwise he or she will be a trespasser.

Had that simple procedure been done following a tip-off from Tarawa, there would be no complaint about the entry and search of the accused’s yacht.

The entry and search in this case were unauthorized and so the charges arising thereof cannot be allowed to stand.

Count 4 is in a different position. The clearance was done on shore at the CPPL office. The accused was required to fill up a form in which he is to declare “total fund” be brought into Kiribati. It is clear that what was required of him was to declare “funds totaling” equivalent in dollars, hence the sign “$” was put at the beginning of the blank space.

The form does not say that the accused must declare how much dollars he had. The form requires him to declare “total fund” he has in his possession.

I agree with Ms Beiatau that the accused knew he had more than a million francs which in AUD terms, is more than $5,000.00. The offence is failing to declare the total amount he had, not for bringing more than $5,000 into the country.

I find there is evidence for him to answer in count 4.

ORDER: Counts 2 and 3 are dismissed even if there is evidence (ground for a case to answer) they would still not be allowed to stand as they are the products of an illegal entry and search.

I find that in Count 4, the accused has a case to answer.

Dated the 7^th day of June 2016

SIR JOHN MURIA
Chief Justice