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Kaitu v Republic [1997] KICA 4; Criminal Appeal 03 of 1996 (21 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 3 OF 1996

BETWEEN

BUREIETA KAITU
Appellant

AND

THE REPUBLIC
Respondent

Date of Hearing: 17 March 1997
Delivery of Judgment: 21 March 1997

Mr D Lrne for the Appellant
Msbr>Ms T Beero for the Respondent

(Click here for Case Note)

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

The appellant was convicted by the Magistrates' Court of Maiana of criminal trespass. The particulars of the charge were that the appellant entered the dwelling house of one Ioane Kabotau with intent to commit an offence. The appellant was sentenced to one year's imprisonment. He appealed to the High Court but his appeal was dismissed.

Evidence given by the complainant (Ioane), if accepted, established that the appellant entered the complainant's house carrying a knife, that he seized and turned the complainant's head and held the knife against his neck, causing a cut. The appellant said in evidence that his actions were done as a joke but the magistrates obviously rejected his evidence and accepted that of the complainant. It was not disputed before us that the evidence which the magistrates accepted was sufficient to prove the offence charged.

The appellant appeals on two grounds. It appears from the record that when the trial commenced before the magistrates the prosecution read a statement by the appellant and a statement by the complainant. This course was apparently taken at the instigation of the court itself. These statements were marked as exhibits but they were not produced on the appeal to the High Court or to us. We do not know what the statements contained.

The statement made by the appellant might have been admissible as a confession if that had been properly proved but the statement of the complainant was clearly inadmissible. It is of course impossible to say whether the statements were prejudicial to the appellant, since we are not aware what they contained. In any case, this ground of appeal does not stand alone.

The second ground of appeal is based on the fact that evidence was given before the High Court that a son of the Presiding Magistrate was married to a sister of the complainant. The appellant said that before the trial he told the clerk of the court that he was not happy to have the Presiding Magistrate hear the case and that the clerk advised him to get a lawyer. He was not represented before the magistrates and did not raise any objection at the hearing.

It is established that a Judge or magistrate should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced or impartial. If fair-minded people might reasonably apprehend or suspect that the Judge or magistrate might not decide the case impartially they cannot have confidence in the decision and confidence is essential to justice. The Presiding Magistrate must have known of the fact that his son was married to the complainant's sister, and that by custom the relationship that thus existed between himself and the complainant might have been expected to carry with it obligations to act in the complainant's interest. It was his duty to disclose to the parties the existence of the relationship, and to decline to sit unless they waived any objection to his doing so. The appropriate authorities may wish to consider informing magistrates generally of their duties in this regard.

Two different tests have been suggested when it becomes necessary to decide whether a judgment cannot be allowed to stand because the judge or magistrate has been, or has appeared to have been, biased. One is that it is necessary to show "that there is a real likelihood that the judge could, from kindred or any other cause, have a bias in favour of one of the parties". The other is that it is enough that the judge could "reasonably be suspected of being biased". See The Queen v Watson; Ex parte Armstrong [1976] HCA 39; (1967) 136 C.L.R. 248, at 258. Sometimes the two tests are applied together. In England it is now accepted that the former test should be applied, but in Australia the latter test is regarded as the correct one: See Webb v The Queen [1994] HCA 30; (1994) 181 C.L.R. 41, at 46-47. It is unnecessary in the present case to decide whether the common law of Kiribati is correctly stated by the former or the latter expression of the test. On either test, in the circumstances of this case, the conviction cannot be allowed to stand.

Normally, we would set aside the conviction and order a new trial. However the appellant has already served in full his sentence, which was the maximum provided for the offence. It would be not merely futile, but unjust, to try him again. It is true that if he were convicted that might have a bearing on his application for parole in respect of a sentence which he is at present serving for murder. In the circumstances, that cannot justify the grant of a new trial.

The appeal is allowed, and the conviction and sentence are set aside.

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