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Utimawa v The Republic [2025] KIHC 42; Miscellaneous Application 05254 of 2025 (23 July 2025)

IN THE HIGH COURT OF KIRIBATI

MISCELLANOUS APPLICATION 2025-05254
HIGH COURT CRIMINAL CASE 2025-00313

BETWEEN: TOM UTIMAWA

AND: THE REPUBLIC

Date of Hearing: 25 June 2025
Date of Judgment: 23 July 2025

Appearances: Mr Banuera Berina for the Accused/Applicant
Mr Tairake Ioane for the Republic/Respondent

R U L I N G

Brief Background of the Case

1. The applicant, Tom Utimawa, has been charged with two counts as follows;
   

Count 1: Cultivation of Indian Hemp contrary to section 8(a) of the Dangerous Drugs Ordinance, Cap 23.

Count 2: Possession of Indian hemp contrary to section 8(b) of the Dangerous Drugs Ordinance, Cap 23.

2. On May 7, 2025, the case was called before this Court. Counsel for the accused/applicant informed this Court that he had signed the agreed facts and that his client, the accused, would plead guilty to the two counts. Following that submission, the accused entered a guilty plea. The hearing was then adjourned to another date for the parties to make sentencing submissions.
   
3. On May 28, 2025, the accused’s counsel informed this court that the charge was incompetent and they would be applying to have the case struck out. The Republic’s Counsel needed more time to review the application, so the matter was adjourned to June 25.
   
4. On June 25, the miscellaneous application to have the charges struck out was heard.
   
5. Counsel for the applicant/accused argued that the charges against the accused should be dismissed as incompetent under section 39(6) of the Dangerous Drug Act. The provision states the following:
   

“6. Notwithstanding any enactment prescribing the time within which such proceedings may be brought, any such proceedings for an offence against this Ordinance may be brought either within the time so specified or 3 months from the date on which evidence sufficient in the opinion of the Attorney General to justify a prosecution for the offence comes to his knowledge, whichever is the longer; and for the purpose of this subsection, a certificate purporting to be signed by the Attorney General as to that date on which such evidence as aforesaid comes to his knowledge, shall be conclusive evidence thereof, and this provision of this subsection shall apply to proceedings for attempting, or soliciting or inciting another person to commit such off3ence, as they apply to proceedings for such an offence.”

6. Counsel for the applicant argued that the offense was allegedly committed on or around May 26, 2021, and that the charge was filed by the Attorney General on July 23, 2024, even though the police completed the investigation in August 2021. Counsel pointed to the date of the last statement taken by the police as the starting point for the three-month period. Additionally, counsel stated that there was no certificate signed by the Attorney General indicating when she became aware or knew that there was sufficient evidence to prosecute the applicant, to demonstrate that the charge complies with the three-month time limit set by the relevant provision.
   
7. The Republic’s Counsel argued that the application has no merit and should be dismissed. Counsel stated the accused has already pleaded guilty to the charges, and it is too late to request that the charges be declared invalid.
   
8. Counsel further argued that section 39(6) of the Drug Ordinance is based on the date when the Attorney General was satisfied that there was enough evidence to file charges against the accused. The applicant did not specify this date but referred to the date when the last statement was taken by the police, which indicates the completion of the police investigation.
   
9. Counsel also said that the information signed by the Attorney General and filed with the Court was the date on which the Attorney General was satisfied that the evidence was sufficient to proceed with the charge against the accused.
   
10. I considered both submissions and agree with the Republic that the relevant date is when the Attorney General was satisfied there was enough evidence to proceed with the charge against the accused. I do not accept the applicant’s submission that this date was when the last witness statement was taken. I acknowledge that the Attorney General filed the information against the accused, and that filing date should be considered the date when the Attorney General was satisfied that the evidence was sufficient to prosecute the accused.
    
11. I also agree with the Republic that it is rather too late in the proceedings to make this miscellaneous application to strike out the charges against the accused since he had already pleaded guilty to the charges.
    
12. I also note that following the applicant’s Counsel request for more time to properly consider their application and to submit a written submission, their request was granted; however, this Court received no submission as such. Instead, this Court received Counsel’s written submission dated 8 July 2025 on their mitigation for sentencing.
    
13. For the reasons stated above, this miscellaneous application to have the charges dismissed is denied. I will now hear the parties on sentencing.

Order accordingly.

The Hon TETIRO SEMILOTA MAATE MOANIBA

CHIEF JUSTICE