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Republic v Tamton [2018] KIHC 40; Criminal Appeal 9 of 2017 (14 December 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL APPEAL NO. 9 OF 2017

[THE REPUBLIC APPELLANT
[
BETWEEN [AND
[
[KAMBEIA TAMTON RESPONDENT

Before: The Hon Chief Justice Sir John Muria

18 September 2018

Ms Pauline Beiatau for the Appellant
Ms Kiata Kabure for the Respondent

JUDGMENT

Muria, CJ: This is an appeal by the Republic against the Magistrates’ Court’s decision acquitting the respondent after a “no case” submission. Section 270(1) of the Criminal Procedure Code (CPC) confers upon the Attorney General or Republic the right to appeal against an acquittal.

2. The respondent was charged under section 15(2) of the Public Order Ordinance with the offence of disorderly behaviour or using insulting words with intent to provoke a breach of the peace. The respondent pleaded not guilty and at the close of the prosecution case, the Magistrates’ Court, on a ‘no case’ submission found that there was no case for the respondent to answer. The Magistrates’ Court then acquitted the respondent.

3. The Republic appealed on the following grounds:

(1) That the Magistrates’ Court erred in law in finding that there was no case to answer on the following reasons:

• (a) That there were insufficient evidence against the accused
• (b) That Public Order Ordinance is the law for the public and not for the Public.
  
• (2) That the Magistrate’s Court erred in law in finding insufficient evidence against the accused
  
• (3) That the Magistrate’s Court erred in law in discharging the accused accordingly.
  

4. The thrust of the appellant’s case is that the Single Magistrate was wrong in law to find that the respondent had no case to answer which led to his acquittal. Ms Beiatau of Counsel for the appellant contended that on the evidence before the Court, the Single Magistrate should have found that there was a prima facie case made out against the respondent, sufficient for him to answer. Counsel submitted that the evidence showing a prima facie case against the respondent came from PW1, PW2 and PW3.

5. The second limb of the appellant’s argument is that the Single Magistrate was wrong to take into consideration the Public Order Ordinance, so as to take into account the element of “public” in the offence with which the respondent was charged. The appellant’s contention is that the element of “public” is immaterial to the offence concerned.

6. Ms Kabure of Counsel for the respondent submitted that the evidence before the Single Magistrate did not satisfy all the necessary elements of the offence with which the respondent was charged. Counsel contended that the respondent was charged under section 15(2) of the Public Order Ordinance and the elements of “public” is relevant for the Court to consider.

7. In Kiribati the test to be applied in a “no case” to answer submission is now firmly established under section 195 of the Criminal Procedure Code and fortified by the case law authority of The Republic –v- Edward Narayan and Lomi Loo [2012] KICA 9 Criminal Appeal 2 of 2012 (15 August 2012). That test is: “If at the close of the prosecution evidence in support of the charge, it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case and shall forthwith acquit the accused”. See also Republic –v- Moutu [2018] KIHC 11; Criminal Case 28 of 2015 (4 May 2018); and Republic –v- Kourabi [2018] KIHC 14; Criminal Case 29 of 2017 (17 May 2018).

8. In the present case, the evidence adduced by the prosecution came from Rubeiti Eria (PW1) who had an argument with the accused over the use of the pathway. They were arguing in loud voices. One Taniera came and took the accused away. The accused then shouted that people from Tabuaeran were claiming to own the place. A Church Minister then came and restrained the accused.

9. Teuta Butiaong (PW2) was the first person that the accused confronted about passing through his plot of land. However, it was PW1 who came and argued with the accused.

10. Tekariri Baraiti (PW3) gave evidence and said that she was doing her laundry when she heard a loud argument. She went to find out and saw the accused and PW2 arguing over PW2 passing through the accused’s plot of land. Then she saw Rubeiti (PW1) came and continued the argument with the accused. She said that Taniera came and pulled the accused away. She also said that a lot of people came to the scene to see what was happening between the accused and Rubeiti. A Church missionary came and took the accused away.

11. Having considered the evidence of the three prosecution witnesses, and upon submission made on behalf of the accused, the Single Magistrate held that the prosecution did not establish the elements of the offence and so dismissed the case and acquitted the accused.

12. The standard of proof to be applied at this stage is not that of proof beyond a reasonable doubt, but that there is some evidence so far from the prosecution pointing to the elements of the offence which is sufficient enough to require some response from the accused. Remembering that at this stage, the only evidence before the Court was from the prosecution.

13. However, since the trial was by a Single Magistrate sitting as judge of both fact and law, the sufficiency of the prosecution evidence must be such as in absence of any other rebuttal evidence, could convict the accused.

14. It is therefore necessary to consider the elements of the offence with which the accused was charged in the light of the evidence before the Court. The appellant charged the respondent with the offence of behaving in a noisy or disorderly manner with intent to provoke a breach of the peace under section 15(2) of the Public Order Ordinance (Cap 82). I set out section 15 in full:

“(1) Any person who at any public gathering acts in a disorderly manner for the purpose of preventing the transaction of the business for which the public gathering was called together or incites others so to act shall be liable to a fine of $100 and to imprisonment for 1 year.

(2) Any person who behaves in a noisy or disorderly manner or uses or distributes or displays any writing containing threatening, abusive or insulting words with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused shall be liable to a fine of $100 and to imprisonment for 1 year”.

15. The respondent was charged under subsection (2). The argument for the appellant is that the offence under subsection (2) does not have the element of “public” or “public place” to be proved. As such Ms Beiatau submitted that the Single Magistrate was wrong to base her decision on the lack of proof of the ‘public’ element of the offence.

16. The Headnote to section 15 refers to “Disorder in public places”. However, when one looks at the section, it is clear that the two subsections to section 15 create two different sets of offences. Subsection (1) creates an offence of disorderly conduct in a ‘public’ gathering or meeting. The ‘public’ element of the offence in subsection (1) is made clear. The gathering is clearly of a public nature, to which members of the public are allowed to attend. Apart from the other elements of the offence in subsection (1), the prosecution would have to establish the ‘public’ element of the offence.

17. The offence under subsection (2), on the other hand, is concerned with the behaviour or use of words in a threatening, abusive or insulting manner which are intended to provoke a breach of the peace or likely to cause a breach of the peace. It is noteworthy that the element of “public” is absent in the subsection (2) offence. That being so, in my view, it can only mean that the offence in subsection (2) can be committed anywhere, either in public or private places, except in a dwelling house. Thus, in my judgment, the element of ‘public’ is not an ingredient of the offence in subsection (2) of section 15 of the Public Order Ordinance under which the respondent was charged in the present case.

18. By way of comparison, section 169(n) of the Penal Code, creates the offence of using threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace or a breach of the peace may be occasioned. In that section, the provision states as follows:

“Any person who in any public place uses threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned, .........”

19. Had the respondent been charged under section 169(n) of the Penal Code, the prosecution would be obliged to show by evidence the ‘public’ element of the offence because it is one of the elements of the offence under section 169(n) of the Penal Code. The respondent in the present case had been charged under section 15(2) of the Public Order Ordinance where the element of “public” is not relevant to the offence under that provision.

20. I have to agree with the submission by Ms Beiatau that the element of ‘public’ is not necessary to be established in the offence under section 15(2) of the Public Order Ordinance. It is therefore wrong for the Single Magistrate to take into account the element of ‘public’ in her determination of whether the respondent had a case to answer or not on the evidence before the Court.

21. The Single Magistrate, however, did not only rely on the supposedly ‘public’ element of the offence in the present case. She also considered the sufficiency of the evidence on the elements of the offence such as the intent to cause a breach of the peace, that a breach of the peace is likely to be caused, or writing containing threatening, abusive or insulting words. There must be some evidence pointing to these elements of the offence. There must be evidence to show that the respondent behaved in a noisy or disorderly manner with intent to provoke a breach of the peace or likely to cause a breach of the peace. Secondly, there must be evidence of words or writing used by the respondent that were threatening, abusive or insulting with the intent to provoke a breach of the peace or likely to cause a breach of the peace. These two considerations or tests are important to secure conviction on the offence under section 15(2) of the Public Order Ordinance.

22. The above considerations cannot be viewed in isolation but in the light of the factual circumstances of the case. In the present case, the undisputed facts are that the respondent confronted PW1 and PW2 over the use of his plot of land by PW1 and PW2 as a passage-way to their place. He was not happy about the use of his plot of land as a passage-way. The parties were neighbours. On the evidence before the Court, there was no evidence from the prosecution demonstrating that the respondent’s behaviour was anything but a genuine concern about the use of his plot of land as a passage-through, which must be viewed as a reasonable concern by the respondent. That was the clear manifestation of his intention when he confronted PW1 and PW2 that morning. That cannot be viewed as a manifestation of an intent to provoke a breach of the peace. The mere fact that PW1 and PW2 might be hurt as to their feelings by what the respondent said does not convert his words or behaviour into a criminal conduct within the meaning of section 15(2) of the Public Order Ordinance.

23. A helpful passage in Ball –v- McIntyre (1966) 9 FLR 237 by Kerr J at 241 is worth noting in a case such as this:

“Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to the community accepted social rules, may well not be offensive conduct within the meaning of the section ...... different minds may well come to different conclusions as to the reaction of the reasonable man in situations involving attitudes and beliefs and values in the community, but for my part, I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions”.

24. The test, therefore, is objective applying to a reasonable person. That being so, whether PW1 or PW2 to whom the respondent’s words were directed, felt threatened, abused or insulted, is immaterial. The prosecution in the present case, brought no evidence to support such a test.

25. On the evidence before the Court, whether from PW1, PW2 and PW3, the Single Magistrate was entitled to come to the conclusion that there was insufficient evidence to establish the necessary elements of the offence brought against the respondent. The Single Magistrate was correct to stop the case there and then, find the respondent had no case to answer and acquit the respondent, a decision that finds support under section 195 of the Criminal Procedure Code and the case of the Republic –v- Edward Narayan and Lomi Loo (above).

26. The appeal is dismissed.

Dated the 14^th day of December 2018

SIR JOHN MURIA
Chief Justice