Republic v Kourabi [2018] KIHC 14; Criminal Case 29 of 2017 (17 May 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 29 OF 2017

(HELD ON KIRITIMATI ISLAND)

[REPUBLIC PROSECUTOR

[

BETWEEN [AND
[
[TEBAATEI KOURABI ACCUSED

Before: The Hon Chief Justice Sir John Muria

17 & 18 May 2018

Ms Pauline Beiatau for Prosecutor
Mr Reiati Temaua for Accused

JUDGMENT ON NO CASE TO ANSWER

Muria, CJ: At the end of the prosecution case the defence submit that the accused has no case to answer. The test to be applied is section 195 of the Criminal Procedure Code.

The accused has been charged with one count of Possession of an Indian Hemp contrary to section 8(b) of the Dangerous Drugs Ordinance (Cap 23). He pleaded not guilty.

Before dealing with the no case submission, let me deal first with the issue raised by Mr Temaua of Counsel for the accused regarding the admissibility of the accused’s Statement given to the police.

Mr Temaua submitted that the voluntarily given by the accused should not be accepted into evidence. The basis for that objection is that the accused was not give n advice as to his rights before he wrote his statement.

The Police Detective (PW1) gave evidence and stated that he gave the accused advice and warning of his rights before he made his written statement. PW1 stated in Court that he asked the accused if he could take his Caution Statement but the accused chose to give his own statement in writing. In his Caution Statement recorded by the Interviewing Officer, shows that the accused was advised of his rights as required under the Judges Rules. The Interviewing Officer recorded the accused as stating that the statement which he gave in writing to PW1 was his statement in the matter.

Despite the suggestion by Counsel for the accused that the accused was not advised of his rights before he voluntarily made his written statement, I am satisfied the accused agreed to write his own statement knowing his rights. In his Caution Statement recorded by the Interviewing Officer, the accused confirmed that his statement written by himself was his statement in the matter and nothing more. In fact in his Caution Statement he was advised if he wished to “alter, correct or add anything” he wish to his statement and did not wish to change anything in his statement which he write and gave to PW1.

I am satisfied that the accused’s statement which he personally wrote and gave to PW1 was admissible in evidence. His caution statement to the Interviewing Officer is also admissible and it admitted into evidence.

I rule that the accused’s own written statement and his caution statement were admissible and they are both admitted into evidence. [Exhibit 2].

On the question of whether there is a prima facie case for the accused to answer, the test in Kiribati is section 195 of the Criminal Procedure Code and the case law authority in Kiribati is Republic –v- Narayan [2012] KICA which has since been applied in other subsequent cases in Kiribati.

Mr Temaua submitted that the burden on the prosecution, even at this stage, is proof beyond reasonable doubt, of the elements of the offence. I think that is taking the test in section 195 of the Criminal Procedure Code too far. I feel that Ms Beiatau was correct to say that at this state, proof beyond a reasonable doubt does not apply. That is because proof beyond a reasonable doubt can only be properly applied when the Court has before it evidence from the prosecution and evidence from the defence. In a no case to answer submission, the only evidence before the court is from the prosecution.

The test in section 195 of the Criminal Procedure Code is that where “it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence” the Court should stop the case and dismiss the case and acquit the accused. If there is some evidence adduced sufficiently to require the accused to make a defence, the accused must be put to his defence.

In the present case, there is evidence of the substance called Indian Hemp given by the accused to PW1. According to PW1, the accused himself stated that it was a marijuana.

PW1 stated that it was the same substance, tested and proved to be Indian Hemp, in Joao’s case. There is therefore prima facie evidence that the substance given to PW1 by the accused was Indian Hemp (or marijuana).

On the issue of possession, PW1’s evidence is that it was the accused who brought the marijuana to PW1. On evidence of PW1, it was the accused who told PW1 that he had marijuana after which he, the accused, went inside his house and brought the marijuana to PW1.

According to PW1, the accused told him that he (accused) smoked the marijuana and that he experimented with the marijuana. The experiment was to mix te marijuana with body oil for use on skin. There is evidence from PW1 also, in the forms of exhibits, namely bottles of the mixture of marijuana and body oil and packet of the substance, Indian Hemp.

Lastly on the accused’s own written statement, which the Court now holds to be admissible, clearly confirms that the accused found the marijuana, kept the substance from 20 May to 23 June 2016, used it for a period of time, and describing the feelings he experienced of using the substance.

On the evidence of the prosecution alone there is, in the Court’s view, evidence sufficiently shown to require the accused to make his defence, in the present case. The accused has a case to answer and I so find.

Dated the 17^th day of May 2018

SIR JOHN MURIA
Chief Justice