IN THE HIGH COURT OF KIRIBATI

1.	HIGH COURT CRIMINAL APPEAL 2024-05804

		BETWEEN:		THE REPUBLIC  
					Appellant

		AND:			BERNARD TOM MURDOCH
					Respondent

2.	HIGH COURT CRIMINAL APPEAL 2025-02911

		BETWEEN:		 BERNARD TOM MURDOCH
					Appellant

		AND:			THE REPUBLIC
					Respondent

3.	MISCELLANEOUS APPLICATION 2025-02986

		BETWEEN:		BERNARD TOM MURDOCH
					APPLICANT

		AND:			THE REPUBLIC
					RESPONDENT

Date of Hearing:			30 APRIL 2025
Date of Judgment:			11 JUNE 2025

Appearances:			Ms. Tenikabebe Tetaumaro for the Republic
Mr. Dimitry Murdoch for Bernard Tom Murdoch

J U D G M E N T

Case background

1.	Bernard Tom Murdoch was charged on 25 July 2024 with careless driving under section 35(2) of the Traffic Act 2017 and damaging property contrary to section 319(1) of the Penal Code Amendment Act 1999. 

2.	He pleaded guilty to both counts. The first count attracts 20 penalty units or up to 2 years imprisonment or both. The second count attracts imprisonment of 2 years. The magistrate court imposed a sentence of 8 months of imprisonment, suspended for 2 years.

Appeal

3.	The Republic and the accused appealed against the magistrate’s decision.
4.	The Republic filed two grounds of appeal as follows;
a)	The sentence imposed is not proportionate to the two offences committed.
b)	The magistrate court did not consider the medical report as an aggravating factor.

Cross-appeal

5.	The accused is both the respondent and appellant in this case.
6.	The accused filed two grounds of appeal as follows;
a)	That he did not give his plea unequivocally,
b)	The learned magistrate erred in law and fact in not recognising that the two charges were defective if brought together under the same particulars.

7.	The accused submitted his appeal one month after the deadline for filing appeals, which is calculated from the date the decision was stamped and issued to him. 

The Accused’s Appeal: The Delay

8.	I will first consider the accused’s appeal, as a successful outcome could eliminate the need to review the Republic’s appeal. 

9.	The Accused contended that the one-month delay is insignificant and not prejudicial to the Republic, as both memories and evidence remain fresh. This position finds support in the case of Atauea v The Republic  [2021] KIHC 1, where the court indicated that an extension of time may not be permitted if memories have begun to fade and evidence has become stale. I concur that a one-month delay does not prejudice the Republic. Additionally, the Counsel argued that their appeal has merit, citing procedural errors and the unequivocal nature of the plea. 

10.	Counsel for the Republic opposed the extension of time because the accused clearly did not intend to appeal the decision initially but filed his appeal after the Republic had submitted its appeal. The Republic contended that this cross-appeal was the accused’s response to the Republic’s appeal rather than genuine concerns about the legality and fairness of the sentence imposed on him. The appellant (accused) did not contest this when he admitted that he was worried he would face a harsher punishment if the Republic’s appeal were to succeed. Furthermore, the accused argued that his initial decision not to appeal was based on his former lawyer’s flawed advice.

11.	Considering the above submissions, I find that the delay is not substantial. The accused has posed critical legal issues for consideration in this appeal. The Republic will not be prejudiced if the extension of time is allowed; therefore, the extension of time is allowed.   

Accused’s submissions for his appeal

12.	Counsel for the accused submitted that the accused’s plea was unequivocal. Counsel rightly cited the case of Atauea v Republic, where the Chief Justice stated that a conviction can only be admitted if the defendant admits the ‘truth of the charge.’ Also relied upon is section 193 of the Criminal Procedure Code, which deals with the arraignment of the accused person. For ease of reference, the relevant part of the provision is quoted below;

“S. 193 Accused to be called upon to plead
(1)	The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or not the truth of the charge.
(2)	If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to him sufficient cause to the contrary.”

13.	In Karakaua v Republic [2015] KIHC 3, the court clarified the procedure for taking the accused’s plea. Counsel has been helpful in quoting this procedure from the Karakaua case as follows;

“(1) The charge is read and explained to the accused, who is asked whether he admits the charge or not;

(2) If he admits the charge/offence, the trial magistrate then goes ahead to enter a plea of guilty;

(3) After the plea of guilty has been entered, the then prosecutor stands up to state the facts which should disclose all the ingredients of the offence;

(4) The accused is again asked to state whether the facts are true or not. … If the accused admits that the facts are true the then trial magistrate will go ahead to find him guilty on his own plea and convict him as charged;

(5) After the conviction, the trial magistrate is supposed to hear from the prosecutor any submission as to the aggravating or mitigating factors. Thereafter, the Court hears submissions from the convict or his counsel on mitigating factors. It is only after hearing from both sides that the magistrate can go ahead and pass a sentence, bearing in mind the submissions made by both sides…;

(6) In a case like the instant one, where the accused was charged with two counts, the facts stated before conviction must disclose the ingredients of the two offences.”

14.	The quote above from the Karakaua case mentions several vital matters. One is that the charge must be read to the accused, and his plea must be taken. The other is that the particulars of the charge must also be read out, and the accused’s response, whether he accepts it, must be noted. Both responses must be recorded using the accused’s own words. The last important point is that if the accused was charged with more than one count, the facts stated must disclose the ingredients of the offences.

15.	 Counsel for the accused submits that the script of the proceeding in the lower court did not show that the accused was given proper understanding of the truth of the charge. The relevant script is as follows;
“Court: 			Has he given his plea? (E a tia n anga te plea?)
Taaira: 			Yes, he pleaded guilty. (Eang, ae e guilty)
(Accused’s Counsel)
Prosecutor: 	Yes, Your worship, that is why we are here. (Eng, tia moti, ngaia ae ti a kaoti ngkai.)
Taaira: 	We ask that the statement of offence and particulars be read out. (Bubuti warekan riki te statement of offence ao particulars of offence)

Prosecutor read out particulars of offence.

Accused:			I kariaia (I agree)

16.	The accused said in his affidavit that he would not have pleaded guilty had the particulars been read out to him separately and that he would have been confused if the word ‘intention’ was mentioned in the particulars. 

17.	 In reply, Counsel for the Republic relied on two grounds. First, that the appellant had the presence of a qualified lawyer, his decision to plead guilty was made in consultation with this qualified lawyer, who should have explained the charges and evidence against him, as well as the consequences of pleading guilty.  

18.	Second, the principle of pleading guilty is stated in section 271 of the Criminal Procedure Code. Based on this provision, the Republic argued that the accused cannot attempt to reverse his plea by claiming that it was not given equivocally. The Republic also referred to the accused’s admission, as recorded in his caution statement, and his willingness to pay for the damages done to the owner’s car.

19.	 Section 271 of the CPC is quoted below;
“ S.271 Limitation of appeal on plea of guilty and petty cases
(1)	No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted of such plea by the magistrate’s court, except as to the extent or legality of the sentence.” 

20.	 The above provision does not prevent any accused from appealing based on an unequivocal plea of guilty. This provision is irrelevant because it does not pertain to appeals from an unequivocal guilty plea. The reference to the accused’s admission in his caution statement cannot be regarded as a formal and proper plea of the accused. The only proper plea is the one entered in court during the arraignment. In response, Counsel for the accused reiterated his submission regarding the principle mentioned in Atauea v Republic, which indicates that an appeal was granted because of the unequivocal plea of guilty given. I accept this argument.

21.	I also accept the argument that the procedure taken in court when the accused’s plea was entered was confusing. The script did not indicate that the accused was asked to enter a plea. What was shown in the minutes is the magistrate court asking whether the accused has given his plea, and his Counsel replied that he pleaded guilty. Then the prosecutor merely read out the particulars of the offense, and the record shows that the accused replied, ‘I agree.’ The other mistake is that since only the particulars were read out, without the charges being presented, it would have been very confusing for the accused to know which charge corresponded to which of the particulars. The proper procedure is for the court to read the first charge and take the accused’s plea. Then, the particulars of that first charge should be read, and the accused should respond to whether or not he agrees with the particulars. The exact process should be followed for the second count and its particulars. Had this been done, the accused would not have been confused, and whatever his answer, it would be accepted as given after the accused had understood the truth of the charge. 

22.	 The second ground concerns the appellant being charged with two different counts under the same particulars, and the particulars failed to include the ingredient of the second count. The second count is an offence of damaging property contrary to section 319(1) of the Penal Code Amendment Act 1999, which reads as follows; 

“S.319 Destroying or attempting to destroy etc property
(1) Any person who wilfully and unlawfully destroys any property whether belonging to himself or another intending to destroy or damage such property, or being reckless as to whether such property would be destroyed or damaged, is guilty of a misdemeanour and shall be liable to a fine of $5000 or imprisonment of 5 years or both.”

23.	The second count requires proof of the appellant's intention, and Counsel argues that there was no mention in the particulars of the words ‘wilful’ or ‘unlawful’; therefore, the particulars did not support the second charge.  The Particulars are stated below, which are also the exact particulars used for Count one.
Bernard Tom Murdoch, on the 11th day of December 2023 at Nanikaai in the Bairiki Magistrerial District recklessly damaged the saloon car in the possession of Puti Tongatapu by means of driving a saloon car (3494) and carelessly collided in the front of Puti’s saloon car; off causing damage to the said saloon car; off mounting from number, damage to front right headlight, bonnet bent inward, airbag blown.

24.	Counsel for the Republic submitted that they wish not to dispute the second ground of appeal because Counsel had already disputed it in her submission. I have referred to the transcript to confirm that Counsel had dealt with this issue in ground two in her oral submissions and found that her oral submission did not cover the issues in the accused’s second ground of appeal. Counsel’s submission concerned only the argument that the sentence imposed was not proportionate and that the magistrate court did not consider the victim's medical report in her sentencing judgment. Regardless of this, I will still consider the merit of the accused’s argument for his second ground of appeal.

25.	 First of all, I concur with the High Court in Karakaua that the particulars must contain the ingredients of the offence. Second, I reviewed the charge sheet dated 25 July 2024, and it listed the two offences and two particulars, one for each offence. Thirdly, after considering the accused’s submission on this second ground, I could not agree because the particulars stated that the accused recklessly damaged the saloon car. The word ‘reckless’ is also an ingredient of the offense. The third line of the offence in section 319(1) mentions the word ‘reckless’ as follows: ‘or being reckless as to whether that property would be destroyed or damaged.’ Additionally, in the case of Bergin v. Brown [1990] VR 888, it was noted that the term 'wilful' obliges the prosecution to "demonstrate either a direct intention to cause damage or recklessness regarding the outcomes of the accused's actions." Recklessness is when the accused is fully aware of the damaging or harmful consequences of his actions but disregards them, proceeding despite knowing the likely results. 

Summary of findings
26.	The first ground is accepted; therefore, the accused's appeal is granted.
27.	In light of the above finding, there is no need to consider the Republic’s appeal. 
28.	The decision of the magistrate court in 2024-03870 MC/CR is quashed. 
29.	 The case is remitted for rehearing.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice