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Police v Ataera [2004] CKHC 2; JP Appeal 04 of 2004 (7 May 2004)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

(CRIMINAL DIVISION) JP APPEAL NO. 4/04

IN THE MATTER of Section 76, of the
Judicature Act 1980-81

BETWEEN

THE POLICE
Appellant

AND

TEINA ATAERA
Respondent

Mr Tetava for Police
Mr Little for Respondent

Date of decision: 7 May 2004

DECISION OF GREIG, CJ

This is another appeal against the Prosecution which failed, I can’t see a correct way to put it. The Respondent was charged with one charge of assault on Mr Chris Kapi on the 17th January 2004. There was a plea of Not Guilty and a defended hearing in which quite a number of witnesses gave evidence on the Prosecution side and on the defence side. The decision of the Justice of the Peace as recorded on the Plaint is this:

"Defendant found not guilty, discharged without conviction under S. 112 of the Criminal Procedure Act 1980-81 plus $10.00 Court costs."

The evidence taken was not recorded and there is no what might be called a regular note of the evidence taken by the Justice of the Peace. There is a three page handwritten document undated and unsigned but which counsel have accepted is the Justice’s record of the hearing clearly in an abbreviated form. I thought myself when I saw it first that it might have been his notes against the decision that he was going to make. Without objection and indeed with encouragement I have considered that note. In addition to that there is on the file a certificate or a report to the Police by the doctor at the hospital who attended the complainant/victim where there’s a diagram of the vehicle involved and the place where some of the people were around the vehicle and there is a copy of the record of the interview of the Respondent by the Police on 22 January 2004.

What seems obvious to me is that after a number of young people had been drinking there was a outside the place at which they had collected. Stones were thrown, a vehicle seems to have been attacked, some strangers to the Defendant, I mean by that, not involved in that particular attack, were also being attacked by a group and in this course the victim received a blow on the forehead which caused lacerations.

The Respondent never denied that he had used a piece of timber and that it had struck the Complainant. Self defence was raised as a defence. There were a number of witnesses giving different versions as is not uncommon in a matter such as this in a confused and angry situation. There were some independent witnesses as well who were strangers to incidents and but who came and gave evidence.

In his notes the Justice has written this:

"I acknowledge the submissions by both the Prosecution and the Defence in which they provided their evidence of proof of their case. The Court cannot deny that the assault did not happen, however was it intentionally or unintentionally. Therefore I find the Defendant is not guilty because it was unintentionally and anyone would have done the same like the Defendant in a similar situation."

Although self defence was clearly raised and was referred to in these notes of the Justice in dealing with the Defence case, nowhere in that decision part of his note did he use the term self defence. Section 112 is a section which is of use where a matter has arisen which even though the facts prove the person guilty, it is felt inappropriate to convict. A Justice of the Peace has a wide discretion to apply that section where it is appropriate in his or her view. Clearly it is not a section which is to be frequently applied but it is appropriate in some circumstances. Here was a case where there was a confusing episode in which there had been aggressive conduct of a part of the Complainant and his friends, an attempt to resolve the situation in which the Complainant became injured. The Justice clearly considered that technically an assault had taken place but he concluded that in the circumstances it was appropriate to discharge the Accused.

There is certainly nothing to persuade me that that discretion was misapplied in this case. Indeed I go so far as to say that it was perfectly proper in the circumstances that pertained on that night and at that Prosecution. The appeal is dismissed.

CHIEF JUSTICE