Ranteweia v Attorney General [2021] KIHC 15; Criminal Case 55 of 2020 (29 November 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 55 OF 2020

[AKERIBA RANTEWEIA APPLICANT
[
BETWEEN [AND
[
[ATTORNEY-GENERAL RESPONDENT

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 1 November 2021
Date of Judgment: 1 November 2021 (nolle prosequi entered)
Date of Judgment on Costs: 29 November 2021 (on the papers)

Counsel: Ms. Kiata Kabure for the Applicant

Ms. Pauline Beiatau for the Respondent

JUDGMENT ON COSTS OF HASTINGS CJ

1. 1 November 2021 was the day Akeriba Ranteweia was to be tried for alleged offending in 2016. The charge was not filed until 4 September 2020, and in course of triaging the backlog of cases, this matter was first called on 22 September 2021. The applicant entered a plea of not guilty on 29 September 2021. Ms Kabure met with her client to go through the statements of six witnesses the prosecution intended to call, and prepared her cross-
2. examination. On the morning of trial, the prosecutor indicated she would be offering no evidence. A nolle prosequi was entered and the charge was dismissed. Ms Kabure sought costs. Both counsel agreed the issue of costs could be resolved on the papers.
   
3. Ms Kabure submitted that the applicant could have avoided unnecessary expense if the prosecution had notified the Court of its position when the case was first called, instead of on the morning of trial. Although Mortimer v Fisher^[1] awarded costs in a malicious prosecution, she submitted that the same principle applies here.
   
4. Ms Beiatau submitted that s 154 of the Criminal Procedure Code is the only provision that deals with costs in criminal cases. She submitted that the Maneaba has not set aside funds for this purpose as is required by s 3 of the Criminal Procedure (Amendment) Act 1980, and that in any event, the provision is intended to compensate a person who has been put to the expense and inconvenience of a charge mistakenly brought. She submitted that the entry of a nolle prosequi because the complainant does not wish to give evidence is different from the situation in which a charge has been mistakenly brought. She also submitted that Mortimer is distinguishable because it concerned malice which does not exist in this case.
   
5. I will deal with Mortimer first. In Mortimer, Lamont J found the defendant “maliciously and without reasonable and probable cause laid an information against the plaintiff before a justice of the peace” charging him with a criminal offence. The rest of the judgment concerned whether or not the prosecution was determined in the plaintiff’s favour, and there was no discussion of costs. There is no evidence in this case of malice on the part of the prosecution, or that the prosecution knew at the time it filed the charge that it would offer no evidence at trial. Indeed, the only evidence I have in this regard is a letter from the complainant dated 1 November 2021, the day of the trial. In that letter, the CEO of the complainant states that he would like the charge to be withdrawn because “all management team members are new to the company and have no knowledge and interest in the case.” It seems to me that the prosecution, after briefing its six witnesses and preparing for trial, was somewhat blindsided by this letter from the complainant. In the circumstances, no malice can be inferred.
   
6. I turn now to s 154 which, in its consolidated amended form, provides as follows:

Compensation in case of frivolous or vexatious charge

154. If on the dismissal of any case any court shall be of opinion that the charge was frivolous or vexatious, such court may order the complainant to pay to the accused person a reasonable sum as compensation for the trouble and expense to which such person may have been put by reason of such charge in addition to his costs.

(2) When a case is dismissed other than under the provisions of s.38 of the Penal Code or aused is acquitted, the the court may order that the Republic pay to accused person a reasonable sum for the trouble and exs to -

(a) (a) he or his family and dependants, or any of them: or

(b) any any person acting on his behalf or on behalf of his family and dependants, or any of them, or acting reasonably in his or their interests,

has been put by reason of the charge.

(3) The provisions of subsections (1) and (2) apply to a withdrawal of a charge or the entry of a nolle prosequi without the substitution of a new charge in the same way that they apply to the dismissal of a case.

7. The explanatory memorandum attached to the Criminal Procedure (Amendment) Act 1980 states that “The purpose of this Act is simply to have compensation made to a person for any loss of wages, etc., and for the value of any additional trouble caused to him or his family, if a criminal charge is brought against him and later the charge is found to be a mistaken one.” The word “mistaken” does not appear in the legislation, but the explanatory memorandum provides evidence of the Maneaba’s intention. It can be used as an aid when interpreting this provision.
   
8. Section 154 applies to any person acting on the defendant’s behalf. Ms Kabure is such a person. It also applies when a nolle prosequi has been entered, as in this case. I do not doubt that the defendant has been troubled by this charge, and has incurred expenditure preparing for his trial, both of which are also required by this provision.
   
9. However, I have not found any malice on the part of the prosecution, nor do I find any mistake. Section 109 of the Communications Act 2012 is broadly phrased: “Any person who does any act which that person knows will cause an unauthorized modification, damaging, deletion, deterioration or suppression of any data commits an offence.” The allegation against the defendant was that he “knowingly and without authority, delated computer data, namely the MYOB.” The allegation fits within the provision. It would no doubt have been vigorously defended, but that is not relevant to the issue of whether or not the prosecution was malicious or mistaken.
   
10. I acknowledge Ms Kabure has done considerable preparation for this trial. Nevertheless, in circumstances in which the prosecution was told of the complainant’s position on the morning of the trial, and having the found the prosecution was neither malicious nor mistaken, I do think it is appropriate to award costs to the applicant under s 154.
    
11. Having come to this conclusion, I do not need to consider Ms Beiatau’s submission that any award of costs can only be made once the Maneaba has allocated funds for that purpose.
    
12. The application for costs is declined.
    

Dated 29^th day of November 2021.

Hon William Kenneth Hastings

Chief Justice

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^[1] Mortimer v Fisher [1913] CanLII 123 (Saskatchewan Supreme Court).