Iantaai v Republic [2019] KIHC 99; Criminal Appeal 5 of 2019 (7 October 2019)

HIGH COURT OF KIRIBATI

Criminal Appeal № 5/2019

NABWEBWE IANTAAI Appellant

v

THE REPUBLIC Respondent

Raweita Beniata for the appellant
Pauline Beiatau, Director of Public Prosecutions, for the respondent

Date of hearing: 13 September 2019
Date of judgment: 7 October 2019

JUDGMENT

[1] On 12 June 2019 the appellant was convicted after a trial in the Makin Magistrates’ Court on charges of criminal trespass (contrary to section 182(2) of the Penal Code (Cap.67)) and indecent assault (expressed to be contrary to section 133(1) of the Penal Code). He was sentenced to imprisonment for 3 years.

[2] Tfencesences were alleged to have been committed in the early hours of Friday, 17 May 2019. The appellant is alleged to have entered the house of the 12-year-old complainant and touched her in enital area while she sleptslept.

[3] The appellant filed a notice of appeal against both conviction and sentence with the Magistrates’ Court on 20 June. On 2 August I granted bail to the appellant pending the hearing of his appeal. He has been at liberty ever since. An amended notice of appeal (against sentence only) was filed by counsel for the appellant on 23 August, while on 29 August counsel filed a petition seeking a review of the appellant’s conviction under section 81 of the Magistrates’ Courts Ordinance (Cap.52).

[4] On 29 August, I pointed out to counsel for the appellant that, as his client had filed an appeal, I was prevented from exercising my powers of revision by the first proviso to section 81(2) of the Magistrates’ Courts Ordinance. The matter was adjourned to allow counsel to obtain further instructions.

[5] When the case resumed on 13 September, counsel for the appellant withdrew the review petition and advised that his client wished to proceed with his appeals against both conviction and sentence. Counsel for the respondent then informed the Court that the appeal against conviction was conceded, as the Magistrates’ Court was apparently unaware of the 2018 amendments to the Penal Code, by which section 133 had been repealed and replaced. The indecent assault allegation against the appellant had proceeded on the basis that he was charged under section 133(1) of the Penal Code, which no longer existed. There was also some question as to whether the Magistrates’ Court had jurisdiction to hear the case at all.^[1]

[6] Counsel agreed that, rather than remitting the matter for retrial in the Magistrates’ Court, an order quashing the convictions on both counts would be sufficient. This was because it was intended that any new trial proceed in the High Court.

[7] I therefore allow the appeal. The decision of the Makin Magistrates’ Court dated 12 June 2019 in case MKCrim 28/2019 is set aside and the appellant’s convictions for indecent assault and criminal trespass are quashed.

[8] In closing, it is disappointing that at least 1 magistrates’ court is unaware of the extensive amendments to the Penal Code that were enacted last year. I recommend that a circular be sent to all magistrates’ courts, informing them (or reminding them, if they have already been informed) of the changes to the law. The Attorney-General should also ensure that all police prosecutors are made aware of the amendments.

Lambourne J
Judge of the High Court

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^[1] Ordinarily, magistrates’ courts do not have jurisdiction to hear criminal proceedings where the charge is brought under Part 16 of the Penal Code, which includes section 133 (see Schedule 2 of the Magistrates’ Courts Ordinance). On 6 September 2012, the Chief Justice made an order under section 28 of the Magistrates’ Courts Ordinance extending the jurisdiction of magistrates’ courts to include proceedings where the charge is brought under, inter alia, section 13decent assaults on femaleemales). Given that the new section 133 (inserted with effect from 23 Fry 2018) provides for inde indecent assaults against any pe(regardless of sex) it is unclear whether the order extenditending jurisdiction applies to offences alleged to have been committed af3 February 2018. For pFor present purposes, it is unnecessary to decide the question.