Attorney General v Taunganga [2024] KIHC 25; Criminal Appeal 5 of 2020 (28 May 2024)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

High Court Criminal Appeal 5 of 2020

BETWEEN	The Attorney General Appellant v
AND	Tabuia Taunganga Respondent

Appearances:	Deputy Director of Public Prosecutions, Ms Tewiia Tawita, for the Republic Director of the Office of the Public Legal Services, Mr Beniata for the Respondent
Date of judgment:	28 March 2024

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JUDGMENT
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1. The appeal is from the decision of the lower court in case Betcrim 1396/2018.

Background of the appeal

2. The background of the case in the Magistrates’ Court entails that the Respondent was charged with an assault causing actual bodily harm contrary to section 238 of the Penal Code. The case was struck out with liberty for the Appellant to reopen its case on 23 May 2019 for the failure of the Prosecution to appear.
3. On 24 July 2019, the Prosecution made submissions to the court below with respect to its reopening of its case which the court granted. The prosecution proceeded on 31 October 2019 with the hearing of the prosecution’s 2 witnesses.
4. On 13 January 2020, the case was called after some adjournments and after the Single Magistrate realized that the police prosecutor failed to appear, he dismissed the case against the accused (Respondent in this case).

The Republic’s submission

5. The Republic is now appealing against the decision based on the sole ground that the Magistrates’ Court erred in law in dismissing the case with no proper justifications. The Republic prayed that the decision of the court below is set aside and for the prosecution to proceed.
6. Ms Tawita, in her oral submission strongly argued that the Magistrate failed to consider the circumstances of the case in which it has been partly heard. Another important issue raised by the Appellant, was the fact that there was no summons served upon the Prosecution and there was no set date after the last hearing before the hearing on 13 January 2020. To compliment her submission, Ms Tawita, argued that there is no copy of the affidavit of service.
7. Furthermore, the Appellant submitted that the charge is a serious one involving a woman victim and that the evidence strongly favored a possible conviction of the Respondent.

The Respondent’s submission

8. Mr Beniata, for the Respondent disagreed with Ms Tawita and submitted that the Magistrate was correct to dismiss the case. He emphasized that the failure of the prosecution in the court below to appear was not the first time and so the court below was right to exercise its discretion to dismiss the case.

The court’s consideration and decision

9. In considering the appeal the court’s records, the last date of the Magistrates’ Court date was 11 December 2019 at 2pm. On the date, the minute shows that there was a workshop in action probably by the Judiciary and the case to be fixed for another date. No date was recorded on the minute. On 13 January 2020, nobody turned up to court (not the prosecution nor the defense turned up) and that when the concerned Magistrate dismissed the case with the explanation that there was no explanation about the failure of the parties particularly the Prosecution (Appellant in this matter).
10. As it was submitted by Ms Tawita, there was no affidavit of service upon the prosecution in respect of the notice of hearing. Section 185(1) of the Criminal Procedure Code provisioned for the complainant to be present in court after receiving the summons served. The provision goes further to state that,
    

“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, ...”

11. This section is clear that the complainant in a criminal case or prosecution should appear in court if he or she have had notice of the time and place appointed for the hearing of the charge. In this appeal, there is no evidence that such information was ever relayed by the court to the parties particularly the complainant or prosecution.
12. The affidavits by the Appellant and Respondent contradict each other’s evidence for notification and service of the summons for the 13 January 2020 trial date upon the parties.
13. However strong the arguments pursued by Mr Beniata were, and even though the minute of the lower court’s case shows that the summons was served, there is no evidence that the summons was served to the Police officers. To this extent, part of section 185 of the Criminal Procedure Code ascertaining that information about date and time of hearing to be served to the complainant or prosecution was not complied with and that the Prosecution was justified in not attending the hearing. Another interesting fact related to the attendance of the parties to the trial date in issue was the failure of the accused and his counsel to also be present in court on 13 January 2020. The conclusion that could be inferred was the fact there was no summons served upon the parties.
14. After considering the submissions by both counsels, the relevant laws and documents filed, I agree with the Republic that the Magistrate has erred in law in dismissing the charge without considering section 185 (1) of the Criminal Procedure Code, particularly with respect to the non-service of the summons or notification of the parties of the 13 January 2020 trial date.
15. The appeal is therefore granted and the decision of the Single Magistrate in Betcrim 1396/2018 is set aside.
    

ORDERS:

1. The appeal is granted and the decision of the lower court in Betcrim 1396/2018 is set aside;
2. The case is remitted back to the Magistrates’ Court to continue the hearing of the case;
3. The Chief Magistrate is directed to allocate a senior Magistrate to continue the hearing of the trial in Betcrim 1396/2018 within two weeks of receiving this judgment.
4. No order on cost.
   

MR ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT