IN THE HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL APPEAL 2025-02682

		BETWEEN:		ISFANDIYER TAUNGA 
					Appellant

		AND:			THE REPUBLIC 

Date of Hearing:			26 March 2025
Date of Judgment:			27 March 2025

Appearances:			Ms. Eweata Maata for the Appellant
                                                         Mr. Tairake Ioane for the Republic

J U D G M E N T

A brief fact of the case;

1.	This is an appeal against the decision of the magistrate's court in Criminal Case Number 2024-05489 dated 20 February 2025. The application before that court involved a bail application, which was refused. 

2.	For context, the appellant faces three counts of violence under section 33(1) of the Family Peace Act 2014. He allegedly violated the Protection Order by approaching the complainant within a distance of less than 10 meters. The second offence involved contacting and threatening the complainant via mobile phone, while the third offence also involved contacting the complainant on another occasion by mobile phone.

3.	The appellant was detained, a hearing date was set, and he was released on bail. Another hearing date was scheduled, but the appellant had travelled to Fiji, causing him to miss that trial date. Upon his return, he was detained again, and although he applied for bail, his request was denied. He appealed the decision on the following grounds.

Appeal Grounds

4.	I) The Single Magistrate was wrong in failing to take judicial notice of the existence of the rules relating to bail applications in criminal cases. 

ii) That the decision of the Single Magistrate was erroneous in refusing the bail application even though there was enough evidence to prove that the Appellant had no intention to abscond the jurisdiction of the court but was forced by his unfortunate circumstances.

iii) The Single Magistrate was erroneous in refusing bail in order to protect the victim when the evidence clearly showed that the appellant was not a dangerous man to the victim and the community and also the charges against him was not of a serious nature which could put the victim and the community at risk if bail is granted.

iii) The Single Magistrate was wrong in refusing bail while the charges against the appellant were not serious in nature and he remains innocent until proven guilty of the alleged offence.

Submissions and Analysis

5.	Counsel for the appellant acknowledges that they did not cite the relevant law granting the magistrate court jurisdiction over bail applications; however, such applications are common and are presented before magistrate courts. Therefore, the magistrate court could take judicial notice of the applicable laws. Counsel for the Republic contends it is the responsibility of Counsel to provide legal authority in support of their application. While the Republic is correct, I also accept the appellant’s submission that the court could take judicial notice of the relevant law. Furthermore, I believe the magistrate court could pose a question to the appellant at the hearing to determine whether the court has jurisdiction. 

6.	Regarding the absconding to Fiji, there is evidence that the appellant traveled to Fiji at the complainant's instruction, indicating that if he went to Fiji, she would withdraw her complaint against him.  There is also evidence that the complainant visited the appellant in Fiji upon his invitation. They spent two weeks together, and when the complainant departed, she reiterated her promise to withdraw the complaint. The complainant did not contest any of this evidence. 

7.	 The appellant returned to Tarawa when he realized that the complainant had not withdrawn the complaint. He voluntarily reported to the police station upon hearing that the authorities were looking for him. He was unaware that he needed to report immediately upon his return. He had hoped to reconcile with his wife and be with his children, which influenced his decision to follow his wife’s request to go to Fiji. The magistrate court ruled that, because the trip was prearranged, the appellant intended to evade trial, asserting that the trip to Fiji served no other purpose. The Republic contends that the appellant’s trip to Fiji had an additional purpose: to continue his studies. While this may be accurate, it is evident from the evidence that this was not the primary reason for his trip to Fiji. He travelled there at his wife’s request, based on her promise to withdraw her complaint against him. The fact that his wife came to Fiji and stayed with him, along with her subsequent promise to withdraw the complaint, reinforces the appellant’s belief that there would be no case against him. There was also evidence that the appellant had not missed any of his previous hearing dates, except for this one occasion.

8.	It is clear that the trip was prearranged, contingent upon the complainant withdrawing the complaint. The magistrate court erred in asserting that the trip served no purpose other than to evade trial. The Republic rightly contended that the appellant should have returned to court to notify them of his plans to fly to Fiji under this arrangement. Nonetheless, that was not the basis for the magistrate's decision. 

9.	The magistrate was also concerned about the complainant's safety. Counsel for the appellant submits that there is no risk to the complainant’s safety, as the appellant is not a dangerous man to her or to the community. Counsel further submits that there was no evidence presented before the magistrate's court of any physical abuse inflicted upon the complainant by the appellant, and I accept this. The magistrate was worried about the complainant's safety because she stated in the magistrate's court that she still felt threatened. The magistrate did not state in his decision that the court should refuse bail because there was evidence that the appellant had made any threats against the complainant or had abused while released on bail. The magistrate also took into account that the appellant acknowledged the complainant's continued feelings of insecurity and fear towards him.  This alone is not enough to form the view that the appellant is abusive. Nevertheless, I find that the magistrate did not support his decision with any evidence of abuse or threat. 

10.	 At the hearing before me, Counsel for the Prosecution presented evidence from the minutes of the proceedings indicating that the appellant, at one time, after his return from Fiji, visited the complainant, shouting and hitting the floor. This behavior could be viewed as a matter concerning the fear and safety of the complainant. I will take this into account in my ruling below. Counsel for the appellant is also correct in asserting that the appellant remains innocent of the charges against him until proven guilty. 

11.	 The appellant submits a comparison of the charges against him with the case of R v Kiaen Tokia [2020] KIHC 48, in which bail was granted upon payment of $5,000 and the surrender of the accused's passport. The appellant notes that the defendant in that case was involved in a serious offence that resulted in the victim's death. The defendant in that case also failed to appear in court as he was in another country. He was detained upon his return but was released on bail under the conditions stated above. Counsel argues that the charges against the appellant in this case at hand are not serious. The appellant is willing to surrender his passport and comply with any other conditions that may be imposed upon him. The Republic’s only concern is that the trial proceeds without delay and ensures the safety of the complainant. The imposition of a monetary condition does not concern them.

Summary
12.	 In light of the reasons provided above, the appeal is granted. The magistrate's court decision is quashed. Bail is granted on the condition that the appellant attends all court hearings, surrenders his passport to the police, and complies with any existing Protection Order or other Orders issued against him regarding the complainant. Additionally, the appellant must not interfere with, contact (in person or via mobile), or visit the complainant and any witnesses in the case against him until the case is closed.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice