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Republic v Tabanga [2007] KIHC 143; Civil Case 19 of 2007 (19 November 2007)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case No. 19 of 2007

THE REPUBLIC

v

TAEBOA TABANGA

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Banuera Berina

Date of Hearing: 15 November 2007

DECISION ON PRELIMINARY APPLICATION

Application to stay criminal prosecution. The grounds:-

1. The incidences which have given rise to the charges against the applicant all took place in late 2004 and the investigation into the case took place in March 2005.
   
2. The applicant although had his caution statement taken in August 2005 was never made aware of the nature of the charges against him.
   
3. The applicant had only become aware of the nature of the charges against him late night on 27th September 2007 when he was handed the summons to attend Court the next day.
   
4. Charges were only filed on the 18th September 2007.
   

The applicant on 11th October swore an affidavit in support:-

2. Having received the charges against me, late at night on
   27th September 2007 I became aware that I am being charged in respect of the things that I allegedly did in late 2004.
   
3. It is clear I am being charged with making false claims in respect of the tutorials that I gave in 2004.
   
4. I must say straight away that I deny ever making any false claim.
   
5. Unfortunately I am not now able to give explicit explanations in respect of the payment vouchers that now form the substance of the case against me.
   
6. The Police Officer who took my caution statement in August 2005 did not show me any payment voucher. He only informed me that my accounts clerk had a complaint against me in relation to the payment vouchers and asked me if I wished to make a statement or not. I was not given any payment voucher to peruse.
   
7. I gave a call to the People’s Lawyer Office and told the person who answered the telephone that the Police have come to take my statement and was advised not to make any statement. I acted accordingly.
   
8. I did raise a number of claims not only in late 2004 but also before 2004 and even up to now and therefore I cannot now remember the specific circumstances which gave rise to my claims in late 2004. All I know is that I only made my claims after my tutorials as I have done prior late 2004 and which I have done up to now.
   
9. I now no longer have the records relating to the tutorial classes I gave in 2004 and therefore it is most difficult for me now to remember what happened especially as I was a tutor at the same time as the person responsible for the due administration of KIT being the Principal and was also responsible for the running of Kiribati Training Programme 2 where I was the supervisor.
   

Taeboa is the Principal of the Tarawa Training Institute, suspended in September 2007 on the day he was served with the charges: three charges of false pretences, three charges of forgery and two charges of uttering. All are alleged to have occurred between 24th February 2004 and 2nd November 2004.

Ms Beiatau on 15th November (the day I heard the application) in response to the applicant swore an affidavit.

Having read the papers before I received Ms Beiatau’s affidavit I wondered what good reason the Attorney General would give for the delay. Having read, especially paragraphs 3 and 5 it is clear that someone or more officers in the Attorney General’s office merely did nothing for all but two years:-

2. Following a perusal of the case file, I can say the following:
   
   • (a) Police commenced investigation in this case on the
     23rd February 2005 following receipt of a complaint from the Ministry of Finance and Economic Development.
     
   • (b) The applicant was interviewed by Police on the 11th August 2005.
     
   • (c) The investigation was completed in August 2005;
     
   • (d) The case file was received by my office on 28th October 2005.
     
3. In the Office of the Attorney General the case file was allocated to one lawyer. Due to pressure of work, this lawyer was unable to complete her work on the case before leaving the office in late 2006.
   
4. The file was then given to another lawyer in the office. Again due to pressure of work this lawyer was unable to complete all the necessary preparation for the case file. The case was then allocated to me in late 2007 which led to the indictment being filed on 18th September 2007.
   

In her oral submissions, in support of written submissions, Ms Beiatau had to admit that there was nothing else she could say. She did submit however that the applicant had not been prejudiced by the delay and, "Delay of the case can be considered in sentencing when the accused was found guilty". This despite the applicant’s assertions that after this time he has no records. Ms Beiatau, overlooking that it is the right of every person to remain silent, even complained about his declining to make a statement to the Police in August 2005 when, she said, the facts would have been put to him he had been willing to speak. I reject her submission.

I canvassed the same questions as arise in this case in The Republic v Kaiue [2003] KIHC 94; Criminal Case 2 of 2003 (5 August 2003). I do not canvass them again except to mention a passage (@ page 4):-

If the Republic delays for no good reason shewn, the Court will strike out the prosecution.

The Republic has not shewn "good reason" for not getting on with the prosecution: there simply is no excuse. On the other hand the applicant has complained he has been prejudiced: the Republic has given no satisfactory reply. I readily accept the applicant’s complaint.

Having read again what I said in R v Kaiue I was reminded of the optimism the Solicitor General then shewed about reducing delays. As a result I said:-

The aim is to dispose of all criminal cases within 12 months of the alleged offence. We are working towards attaining it. I mentioned the aim during argument and the Solicitor General readily agreed. Mr Lambourne said the procedures within the police for investigating crimes are being improved and should reduce the time between offence and reference to the Attorney General. I am sure Mr Lambourne is keen to speed up procedures in the Attorney General’s office.

As time passes to allow the Police Commissioner and the Attorney General to tighten procedures in their respective domains, the Court will become progressively more sympathetic to applications such as these. All concerned should remember the aim: that criminal cases be disposed of within 12 months.

It is disappointing that long delays for no good reason are still occurring four years later.

I suggest strongly that if the Attorney General has not sufficient staff in his office to cope with the case load he should engage more staff competent to deal with it as soon as he can.

I grant the application and make an order in terms prayed in paragraphs 1 and 2.

Dated the 19th day of November 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice