[1979] KILR 42

HIGH COURT OF THE GILBERT ISLANDS

Criminal Revision No 6 of 1979

ABETON TOKAIA

v

REGINA

(O'BRIEN QUINN C.J.)

Betio: 5th January 1979

Criminal Revision order - section 81(1) of Magistrates' Courts Ordinance 1977 - Magistrates found accused had a "case to answer" - accused acquitted due to insufficiency of evidence - section 193 of Cap 7 - burden of proof section 64(3) of Cap 69 - burden of proof not on defence until case established - Magistrates' judgment confirmed.

The accused who was the licensee of the Captain Cook Hotel on Christmas Island was charged with permitting drunkenness on licensed premises contrary to section 64(1) of the Liquor Ordinance (Cap 69) and at the end of the prosecution case the Magistrates found that he had a "case to answer". In his defence the accused, while admitting that some drunkenness had taken place, stated that he had taken every effort to avoid such trouble. Magistrates then acquitted him as they found that the prosecution evidence was not strong enough.

ORDERED: (1) That although the Magistrates were right to have acquitted the accused they should have made a decision after the close of the prosecution case that the accused had "no case to answer" and should have applied section 193 of the Criminal Procedure Code (Cap 7);

(2) That although section 64(3) of the Liquor Ordinance (Cap 69) states that the burden of proving that he took all reasonable steps to prevent drunkenness lay on the defence nevertheless the burden of proving drunkenness was on the prosecution and that if the prosecution did not prove it then there was no burden on the accused and he need not have been called upon to make his defence.

O'BRIEN QUINN C.J.:-

This case was brought to my notice by the Clerk of the Magistrates' Court for the Christmas Island Magisterial District in view of the procedure adopted, and under the powers vested in me by section 81(1) of the Magistrates' Courts Ordinance 1977 (No 17 of 1977), of my own motion, I called for the Record of the case.

2. From the certified copy of the Record which I have just received it appears that the accused was the licensee of the Captain Cook Hotel Public Bar and that he was charged with the offence of permitting drunkenness to take place on those licensed premises on 19th December 1978 contrary to section 64(1) of the Liquor Ordinance (Cap 69).

3. When the case came before the Magistrates' Court on 23rd February 1979 the accused pleaded "Not Guilty" and the Police called one witness, who had been a Barman at the Hotel on 19th December 1978, but in his evidence he was very vague about what had happened and did not say anything about any drunkenness having taken place there.

4. On this evidence the Magistrates found that the accused had a case to answer and, on complying with section 194 of Cap 7, the accused chose to give evidence on oath. In his evidence he stated that even though he was the licensee of the Hotel, he was under the Manager but that, in making arrangements for the Ball that took place there on 19th December 1979, the Manager had assured the organizers of the Ball that there would be sufficient "Bouncers" in attendance to avoid any trouble from drunken people. Under cross-examination the accused said that trouble did break out while he was in another part of the Hotel but that the Police, who had been called in, had settled it and had arrested the troublemakers.

5. On this evidence the Magistrates found the accused "Not Guilty" "because the evidence from the Prosecution side is not sufficient and not enough." They, accordingly, acquitted the accused and dismissed the case.

6. I consider that the Magistrates came to the right conclusion but that they adopted the wrong procedure. When the Prosecution had closed its case after producing only one witness was the time when the Magistrates should have decided that there was no evidence against the accused sufficient for him to answer. The evidence produced by the Prosecution did not establish the offence charged and the Magistrates should have applied section 193 of Cap 7 (Criminal Procedure Code) and should have had regard to Rule 15(4) of the Magistrates' Courts Rules 1978 and found that the accused had no case to answer and acquitted him at that stage and not called upon him to answer the charge. Magistrates must be careful to see that the Prosecution has proved the essential ingredients of a charge before finding that an accused has a case to answer. If the evidence to prove the charge is not there the accused is entitled by law to be acquitted. It is for the Prosecution to prove the accused guilty not for the accused to prove his innocence. In this case there was no proof that drunkenness took place in the Hotel on 19th December 1979 and there was no evidence that, if there were, the accused permitted it.

7. However the accused did give evidence but, in his evidence, while admitting that trouble did occur at the Hotel on the night in question, he did show that efforts had been made to avoid such trouble. Section 64(3) of Cap 69 states that the burden of proving that the licensee and all persons employed by him took all reasonable steps for preventing such drunkenness shall be on the licensee, but before the licensee is called upon to prove the reasonable steps the Prosecution must first prove the "drunkenness". The drunkenness was not proved but even if it had been proved the evidence of the accused was sufficient to show that reasonable steps had been taken to prevent such drunkenness.

8. On the whole of the case, therefore, I confirm the finding of the Magistrates' Court and I uphold dismissal of the charge.

9. I would point out, however, that in future, Magistrates' Courts should be careful to examine the Prosecution case to see if it proves the charge laid, before finding that the accused has a case to answer, and should not call upon the accused to make a defence unless the Prosecution has established a "prima facie" case, which means a reasonable case with the main facts alleged shown to be established by evidence.