IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 48 OF 2011

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

LI JIAN PEI
TAAITEITI AREKE
ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

29 July 2014

Ms Pauline Beiatau for Prosecutor
Ms Botika Maitinnara for Accused

RULING

Zehurikize, J: On 17 September 2013 the accused persons/applicants filed an application seeking an order that the criminal proceedings against them be stayed.

They set forth 11 grounds for the application which mainly are that:

(a)	The three offences were allegedly committed in February 2007 and February 2008, but made their caution statements in July 2010;

(b)	That the charges against them were filed on 29 October 2011;

(c)	Then they first appeared in Court on 2nd October 2012;

(d)	The key witness for the defence has passed away;

(e)	That the first accused Li Jian Pei is now a citizen of Kiribati having obtained the Certificate of Citizenship for more than five years and eight months at the time of filing the application and is a holder of Kiribati passport;

(f)	That it is very unreasonable for the Government to bring this case after five years and eight months.

The application is supported by the affidavits of both applicants/accused persons.

At the hearing of this application Ms Botika Maitinnara appeared for the applicants while Ms Pauline Beiatau was for the Attorney General. Both counsel made short presentations in addition to their written submissions which are on record.

It is important to note that in the application brought by way of Notice of Motion no law is cited under which it is made. I have noted that it is common practice here that Counsel file all sorts of applications without caring to disclose the law under which they are made. Parties are not at liberty to flood courts with matters that might not be having any legal basis. Where parties are represented by Counsel it is good practice to cite the relevant law, if any, to guide Court and the opposite party. 

Where it is found that the application is not supported by any law it will be struck out. But of course if Counsel cites an incorrect provision of the law or cites no law but in fact there exists the law which allows the bringing of the application, in the interest of justice, Court would entertain such application.

In the present case, in her written submissions Counsel for the applicant contended that the delay of over four years is in breach of Chapter 11 section 10(1) of the Constitution of Kiribati which states:

"If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded fair hearing within a reasonable time by an independent and impartial court established by law".

The above provision is not a procedure upon which an application for stay of criminal proceedings can be brought. It is merely a declaration of one of the protected fundamental rights and freedoms of the individual under Chapter 11 of the Constitution, which are to be found in Sections 3 to 16 of the Constitution.

The procedure for enforcement of the protected rights and freedoms is provided for under s.17 of the Constitution and in particular subsections 2 and 5 thereof. However for clarity I will reproduce here the whole of that section.

"17. (1) Subject to the provisions of subsection (5) of this section, if any person alleges that any of the provisions of sections 3 to 16 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person) then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress. 

 (2) The High Court shall have original jurisdiction— 

(a) to hear and determine any application made by any person in pursuance of the preceding subsection; 

(b) to determine any question arising in the case of any person which is referred to it in pursuance of the next following subsection, 

and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 3 to 16 (inclusive) of this Constitution: 

Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of this Constitution or under any other law. 

 (3) If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of sections 3 to 16 (inclusive) of this Constitution, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious. 
 
(4) The Maneaba ni Maungatabu may by law confer upon the High Court powers additional to those conferred by this section for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section. 

 (5) Rules of court making provision with respect to the practice and procedure of the High Court in relation to the jurisdiction conferred on it by or under this section (including rules with respect to the time within which any application or reference shall or may be made or brought) may be made by the person or authority for the time being having power to make rules of court with respect to the practice and procedure of that court generally". 

By virtue of this provision the High Court is empowered to hear and determine any application by any person who alleges that any of the protected rights and or freedoms has been, is being or is likely to be contravened. It appears, however, that no Rules of Court with respect to the practice and procedure to be followed by the High Court in exercise of its jurisdiction conferred on it under the above section have been made as envisaged under subsection (5) thereof.

It is clear to me that, contrary to Ms Maitinnara's assertion, this application was not brought under section 17 of the Constitution. If that were the case then this Court would have been moved to act under its civil jurisdiction to entertain the issue of the violation of the applicants' rights. The enforcement or securing the enforcement of any provisions of sections 3 to 16 under s.17 of the Constitution, is by way of civil proceedings in which the Court exercises its original jurisdiction as clearly stated under subsection 2 of s.17 above. 

It cannot be by way of an application made under a pending suit or criminal proceedings as Ms Maitinnara would want this Court to believe.

A persuasive authority can be obtained from the High Court of Fiji In re Application by Abhinish Kumar Nand (2008) FJHC 191; HBM 15.2008 which was cited to me, in which the Court considered, inter alia, the provisions of s.29 of the Constitution of Fiji which is partly similar to our section 10(1) of the Constitution. The Court in that case was moved and sat in its civil jurisdiction.

The question that arises now is whether this application, which is not brought under s.17(2) and (5) of the Constitution and not by moving the Court in its original jurisdiction (Civil) is incompetent and cannot be entertained.

The answer is to be found again in s.17(1) of the Constitution. The reading of this provision shows that its operation is "without prejudice to any other action with respect to the same matter which is lawfully available".

In other words a person can seek redress by any other action which is lawfully available apart from making the application to the High Court under s.17 for enforcement of his or her protected rights and freedoms.

Further the proviso to subsection 2 of s.17 of the Constitution gives discretion to the High Court to decline to exercise its powers under the same subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under the provisions of the Constitution or under any other law.

It is important, however, that the applicant should cite that "any other law" or provisions of the Constitution he or she relies on in bringing the action.

As already stated the applicants did not cite any law on which their application is founded. However, I am inclined to agree with Ms Beiatau when she stated that the power to stay proceedings is based on common law. Her view is not without merit. The application of the common law principles can, in my view, be read in the provisions of s.300(1) of the Criminal Procedure Code which states:

"The High Court may in the exercise of its criminal jurisdiction issue any writ or order which may be issued by the High Court of Justice in England".

In other words, section 300(1) of the Criminal Procedure Code allows a party to make an application seeking writs or orders which may be issued by the High Court of Justice of England. In my view this section should have been cited in the application as the law under which it was brought.

This leads to the question of whether the order for stay of proceedings is one of the orders issued by the High Court of Justice of England under common law. The answer appears to be yes.

In Criminal Appeal No. 11 of 2009 between the Republic and Maineti Bureieta which was cited to me, the Court of Appeal of Kiribati held, inter alia, that the power to order a stay is a common law one, an aspect of the more general power of Court of competent jurisdiction to address an abuse or misuse of process. The Court went ahead to discuss the principles and factors to be considered before granting the order. The Court cited and relied heavily on English cases.

In Criminal Case No. 43 of 2005 The Republic v Linda Ueanteang and Ueanteang Nakangeri, in an application for stay of proceedings, this Court relied on Regina v Horseferry Road Magistrates' Court, Ex parte Bennett (1994) 2 AC 42 to come to the conclusion that the prosecution of the accused offended the Court's sense of justice and propriety and given the history of that case it would not be fair to the defendants to allow the prosecution to proceed.

In view of the above and many other authorities which were brought to my attention it is clear to me that the High Court of Justice of England does issue orders for stay of proceedings and therefore by virtue of s.300(1) of the Criminal Procedure Code this Court in the exercise of its criminal jurisdiction can issue an order for stay of proceedings. 

For the above reason the application is properly before this Court despite the fact that it does not disclose under what law it is founded. Further this application is an action which is lawfully available to the applicants by virtue of s.300(1) of the Criminal Procedure Code, within the meaning of the provisions of s.17 of the Constitution.

It is my considered view that the applicant had the option to proceed under the provisions of the Constitution by moving this Court in its original civil jurisdiction or to bring the proceedings under s.300(1) of the Criminal Procedure Code. Having found that the application is properly before this Court the next question is whether it has any merits.

The law on this matter was succinctly put by Lord Lowry in Regina v Horseferry Road Magistrates' Court, Ex parte Bennett (Supra) which was followed by this Court in Republic v Linda Ueanteang (Supra) as follows:

"….. I consider that a Court has discretion to stay any criminal proceedings on the ground that to try the proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the Court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the Court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the Court's disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the Court ought not to stay the proceedings merely 'pour encourage les autres'".

I entirely agree with the above position of the law. In a more concise manner one can state that the power to stay criminal proceedings is discretionary and the overriding consideration is whether, in the circumstances of a particular case, the accused will be given a fair trial. It is with the above principles in mind that I proceed to determine the merits or demerits of the case before Court.

In Count I, the accused are alleged to have made false statements on oath contrary to section 97 of the Penal Code. The particulars of offence disclose that this was done on 28 February 2008.

In Count II, they are alleged to have made false declarations contrary to section 100(1)(a) of the Penal Code some time in 2007.

And in Count III they are alleged to have obtained a passport by false statement contrary to section 7 of the Passport Ordinance Cap 66A. This was on 1st February 2007.

The Police recorded their caution statements in July 2010 more than two years after the last offence was allegedly committed.

The charge sheet was presented and received in Court on 25 October 2011 after more than three years after the latest offence is alleged to have been committed. The applicants were summoned and appeared in Court on 2 October 2012 some five years after the alleged commission of the offence and a year after the case had been registered in Court.

The gist of the applicants' case is that since then the first applicant has been granted Certificate of Citizenship which he has had for more than five years and eight months and is a holder of Kiribati passport. Apparently these developments were as a result of the declarations they made which are now being alleged to be false.

It is averred in the applicants' affidavits that the person who knew the family background (family tree), upon which the first applicant based his application for Citizenship and Passport, one Erika Kauongo passed away in 2011. That because of the delay, they have lost a vital witness in their defence. It is their contention that as a result they cannot get a fair trial if the prosecution proceeds.

In her submissions and in an attempt to bring the case within the ambit of s.10 of the Constitution Ms Maitinnara contended that since the filing of this case, the prosecution of the same has been delayed. From the record I find that the Prosecution cannot be blamed for the slow pace at which this case has moved from the time of filing. The Court would share some blame. In any case I do not find that the delay is so inordinate as to attract any form of condemnation.

However, from the pleadings on record and Counsels' written submissions the focus was on the delay from the time when the offence is alleged to have been committed and the time when the accused first appeared in Court. 

The defendants' said vital witness died in 2011, implying that if prosecution had taken place within reasonable time from the time of the alleged commission of the offence she would have testified before her death. It would therefore not be correct to say that this case is hinged on the provisions of s.10 of the Constitution which deals with a specific protected right. Rather this case is based on the common law principles regarding the stay of criminal proceedings as already discussed above.

While I agree with Ms Beiatau that the power to stay proceedings is exercised in exceptional circumstances and that the rights of the accused must be considered alongside interest of the community as represented by the State, I am not persuaded by her assertion that the absence of the said deceased is just a loss of one of the witnesses the accused could call.

I find that in the particular circumstances of this case the accused would be grossly prejudiced if the prosecution proceeded with the case. The person who supplied material facts on which the applicants based the first applicant's application for citizenship or passport and which facts are the cause of this prosecution was a very vital witness to the defence. Their trial cannot be fair in her absence. The undue delay in bringing the charge and prosecute the accused persons denied the accused of the opportunity to call the intended witness – now deceased. The applicants now cannot be afforded a fair trial.

The delay in bringing the criminal proceedings was inordinate and without any excuse. It merely prejudiced the accused.

The continued prosecution of the applicants offends the Court's sense of justice and propriety. Having lost the said vital witness and given the passage of time the applicants cannot be expected to reconstruct what is here known as "the family tree" so as to explain away the allegations against them. It should be noted that the Court's decision is not intended to disapprove the conduct of the prosecution in this case nor even merely the time taken to prosecute the accused but that if the prosecution was allowed to proceed, the accused would not get a fair trial.

Consequently the application is granted and the applicants' prosecution is hereby stayed.

Dated the 27th day of August 2014

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge