Attorney General v Kaitaake [2022] KIHC 8; Civil Appeal 1 of 2018 (17 February 2022)

IN THE HIGH COURT OF KIRIBATI 2022

Criminal Appeal No. 1 of 2018

[ATTORNEY GENERAL APPELLANT
[
BETWEEN [AND
[
[ANTEREA KAITAAKE RESPONDENT

Before: The Hon Chief Justice

17 February 2022

Ms Tawiita for the Appellant
Mr Berina for Respondent

JUDGMENT OF HASTINGS CJ

[1] This is an appeal from the decision of the Single Magistrate in Abemama to dismiss five charges against the defendant.
[2] The defendant was charged with criminal trespass, destroying or damaging property, riot, riotously interfering with aircraft and proposing violence at a public gathering after he allegedly dug up the landing strip at Abemama airport on 16 May 2013. The charges were filed on 25 July 2013. The case was not called to be heard before the Single Magistrate until 17 May 2017, nearly four years later.
[3] No one appeared to prosecute the case on 17 May 2017. Counsel for the defendant applied to have the charges dismissed. The Single Magistrate declined to dismiss the charges because they were so serious. Instead, the Single Magistrate adjourned the matter to 28 August

2017 and ordered the prosecution to pay the defence $527 costs within three months.

[4] When the case was called again on 28 August 2017, the prosecution had not paid the costs. One of the reasons given was that the Maneaba had to appropriate specific funds for that purpose. The prosecution did however acknowledge that the costs had to be paid. The Single Magistrate extended the time to pay, and stated that if costs were not paid by 5 September 2017, the case would be dismissed. Without taking a plea, the Single Magistrate proceeded to hear the prosecution evidence and adjourned the case to 3 October 2017.
[5] The prosecution did not appear on 3 October 2017, and the case was adjourned again to 18 October 2017.
[6] I cannot find anything in the Record to indicate what happened on 18 October 2017, but in a judgment dated 3 1 October 2017, the Single Magistrate dismissed the charges because the prosecution failed to comply with an order of the Court.
[7] The first ground of appeal is that the Magistrate's Court erred in law in dismissing the case upon the grounds of contempt of Court. Ms Tawiita submitted that non-payment of the costs order is not contempt of court, that the non-payment of costs presented no risk of prejudice to the administration of justice, and that not complying with the order was beyond the prosecutor's control because an appropriation for that purpose was required from the Maneaba. Mr Berina agreed this was not a contempt, and submitted simply that the prosecution did not comply with an order of the Court granting an adjournment on condition that the costs were paid. As the condition was not satisfied, the Court did not err when it dismissed the charges.
[8] The Single Magistrate's decision of 17 May 2017 is translated at p 94 of the Record as "Cost to be paid before this date [24 August 2017]." This order could be interpreted merely as a sanction for the prosecution's failure to appear on that date, or after four years of not prosecuting the charges, it could be interpreted as a condition precedent to the matter proceeding. There is no explicit reference to the charges being dismissed if the costs were not paid by that date, but this is how that sentence has been interpreted by defence counsel, the prosecution, and the Magistrate who dismissed the charges. Mr Berina submitted that that the Single Magistrate decided on 17 May 2017 that if the prosecution did not pay costs within three months, then the charges would be dismissed. Ms Tawiita submitted that the Republic "was given 3 months to pay for such a cost, otherwise the case would be struck out." At p 105 of the Record, the Magistrate is recorded as saying on 25 August 2017 "since they failed to comply with Court direction the Court decide that the case be dismissed" before adjourning it to 3 October 2017. And on 31 October 2017, at p 108 of the Record, the Magistrate decided "the case is struck out for the above reasons" which included the Court's decision on 25 August 2017 that "if the prosecutor did not pay for cost then the case will be struck out." I will therefore proceed on the basis that the Single Magistrate indicated no later than 25 August 2017 that unless the prosecution paid the costs that the defendant incurred on 17 May 2017 by a certain date, the charges would be dismissed. In other words, the adjournment was conditional on compliance with the Court's order, failing which, the charges would be dismissed.
[9] Section 185(1) of the Criminal Procedure Code provides:

Non-appearance of complainant at hearing

If, in any case which a magistrate's court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit,

[10] Similarly, Rule 14 of the Magistrates' Courts Rules states:

When person making the charge does not appear

14(1) If at the time and place appointed the person charged is before the court and the person making the charge, having had due notice, does not appear, the court may dismiss the charge or adjourn the hearing as to it seems fit.

(2) In the event of the charge being dismissed the court may make such order as to payment of compensation by the person making the charge to the person charged and his witnesses for loss of time as to the court seems just; and the compensation to be paid shall be limited to a sum or sums, not exceeding $5 for each day or part of a day of attendance of each person in respect of whom compensation is payable.

[11] Under s 185, the Court "shall dismiss...unless" for some proper reason it adjourns on such terms it thinks fit. Under Rule 14, the Court "may dismiss or adjourn" as it sees fit. The Single Magistrate had the power to dismiss the charges under both provisions, but declined to do so right away because of their significance, and notwithstanding it took the prosecution four years to bring those charges before a Single Magistrate. The Magistrate could just as easily have dismissed the charges for want of prosecution. It was not unreasonable for the Magistrate to have made the adjournment conditional on the prosecution reimbursing the defence for the costs of attending a hearing that the prosecution, after four years, failed to attend. These were reasonable terms in the circumstances which, to my mind, complied with both provisions, and which the Magistrate thought fit and appropriate.
[12] It was perhaps unorthodox for the Magistrate to have then started the trial at the next hearing date, having been informed that the prosecution had not complied with the order. No doubt the Magistrate trusted the prosecution would comply with the order if it were given a bit more time, and to avoid yet another adjournment after years of not prosecuting these charges, the Magistrate got the trial underway. This should not distract from the central issue however, which is the consequences of non-compliance with an order of the Court. The Magistrate stated what the consequences would be before the trial commenced, and notwithstanding the commencement of the trial, the order was not complied with by the time the extended period for compliance expired.
[13] In these circumstances, I find the Magistrate did not act unreasonably or make an error of law in dismissing the charges.
[14] I turn now to the second ground of appeal, which is that the Magistrate's Court erred in law in failing to specifically state whether the accused was acquitted or discharged. Ms Tawiita submitted that the magistrate should have said whether the defendant was acquitted or discharged. She submitted the defendant could only be acquitted if the Court had found the prosecution had not proven its case beyond reasonable doubt. The Magistrate made no such finding in this case. Mr Berina submitted that s 185 of the Criminal Procedure Code gives the Court only two possibilities — to adjourn or dismiss. He submitted the Court is not required to state whether the accused is acquitted or discharged.
[15] The Magistrate dismissed the case without taking a plea and without asking if the defendant wished to give or call evidence. No trial was therefore completed in terms of s 121 of the Criminal Procedure Code, which means the defendant could not be said to have been acquitted. Under s 185, the Magistrate only had two choices - to dismiss or to adjourn. The Magistrate did not make an error of law in not stating that the defendant was discharged because s 185 does not permit the Magistrate to discharge the defendant. It does not have to. Having dismissed the charges, and given the non-applicability of s 121, I agree with both counsel that the effect of the Magistrate's decision to dismiss the charges under s 185 is that the accused was discharged.
[16] For the above reasons, the appeal is dismissed.

Dated the 17^th day of February 2022

HON. WILLIAM KENNETH HASTINGS
CHIEF JUSTICE