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Republic v Loo [2012] KIHC 11; Criminal Case 13 of 2011 (18 May 2012)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 13 OF 2011

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

LOMI LOO
EDWARD NARAYAN
RAJNESH PRASAD
ACCUSED

Before: Hon Chief Justice Sir John Muria

15 & 16 May 2012

Ms Tewiia Tawita for Prosecution
Ms Botika Maitinnara for Accused

JUDGMENT

Muria CJ: At the end of the prosecution case, Ms Maitinnara of Counsel for the accused made a no case submission on behalf of Edward Narayan ("Eddie") in respect of all the counts against him. The basis for Counsel's submission is that at the close of the prosecution case, there is no or insufficient evidence to ground a conviction against the accused,
Edward Narayan on each of the counts. It is therefore suggested that the accused, Edward Narayan, has no case to answer and he should be acquitted forthwith.

Ms Tawita of Counsel for the prosecution, relying on R -v- Galbraith [1981] 1 WLR 1039, [1981] 2 All ER 1060; 73 Cr. App. R 124, argued that the accused, Edward Narayan, has a case to answer. Counsel submitted that there is evidence of communication between Rajnesh Prasad (one of the accused who has since left Kiribati) and Edward Narayan as well as with Lomi Loo about the container in question. Counsel further suggested that there had been a close association between Rajnesh and Edward Narayan, as with Lomi Loo. Counsel appeared to lay emphasis on a suggestion that there was a joint enterprise among the three accused. Thus argued Counsel, the accused Edward Narayan, must answer for his part in the said joint enterprise.

The case of R -v- Galbraith lays down the approach to be taken in a no case to answer submission. It must also be noted that the trial in Galbraith was by a jury. In Kiribati, criminal trials are by judges alone. Hence difficulties do arise when trying to reconcile the authorities in the United Kingdom criminal cases with those in jurisdictions where judges sit alone as judges of the fact as well as of the law.

The English Court of Appeal in Galbraith case, despite the 1966 Criminal Appeal Act (UK) which gives power to a judge to stop a trial on a no case submission, said that if there was evidence, the reliability of which fell to be assessed by the jury, then the Court must not stop the case, whatever view the judge had formed of it. Where, however, the judge comes to the conclusion that the prosecution evidence was such that a jury properly directed could not properly convict on it, he should withdraw the case from the jury.

In Kiribati, I feel, however, that the words in section 195 of the Criminal Procedure Code (Cap. 17) where "it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence" suggest that a judge who is both a judge of fact as well as law, is entitled to consider the sufficiency of the evidence at the end of the case for the prosecution. The position under section 195 of the Criminal Procedure Code goes further than that of a judge sitting with a jury. Thus, at the close of the prosecution case, if I am not satisfied that there is sufficient evidence on which I could convict the accused, I should stop the case, that is, I "shall dismiss the case and shall forthwith acquit the accused" to use the words of section 195 of the Criminal Procedure Code.

The accused Edward Narayan has been charged together with Lomi Loo with knowingly evading payment of import duty. The offence has both the actus reus and mens rea that are required to be satisfied before the charge can be said to be established. There must be evidence sufficient to ground a conviction.

In this case, there is no evidence to show that Edward Narayan knew that duty was imposed by the Act; that he did something to avoid payment of duty and that he did what he did knowingly to avoid payment of duty. The prosecution simply assumed that by his association with the other accused, he must be presumed to know that duty is payable under the Act on the goods in the container. Due to the way the prosecution presented its evidence, questions had never been asked of the accused to establish each of the elements of the offence. The fact that Edward Narayan accompanied Rajnesh and Lomi to clear the container, to open the container, to the customs, is no evidence to prove the elements of the charge of knowingly evading payment of duty.

On the charge of concealment of goods, there is practically nothing at all on the evidence to suggest that Edward Narayan performed any act of concealment. The evidence does not show that Eddie had any part in concealing the sugar in the Pig Grower bags. The evidence from Karaiti Kirara that Eddie requested to close the container and to have it reopened later for inspection can hardly be any way near as evidence of concealment of goods. The evidence on this charge is as thin as a thread to ground any conviction against the accused.

On the charge of knowingly making false or misleading statement in so far as against this accused, the evidence is not there to show that Eddie knowingly made any false or misleading statement. Likewise on the charges of intimidating a custom officer and Demanding property on forged documents, the evidence is not there pointing to those charges, let alone grounding convictions on those charges.

As evident from the submission by Counsel for the prosecution, the case against the three accused revolves around their being associated with one another. Counsel sought to rely on the communication among the three accused prior to the arrival of the container and Rajnesh in Kiribati. It is the prosecution case that the accused Edward Narayan is part of a joint enterprise.

To start with there is no evidence of a joint enterprise in this case. The evidence, in fact, is that Rajnesh is the main controlling figure. In the court's view, it is an assumption to say that there is a joint enterprise between the three accused. That can hardly be a basis at all for any conviction against the accused.

Tax laws are interpreted and applied strictly. As such the case against each of the accused must be proved strictly.

The evidence before the Court is so insufficient to ground a conviction against the accused. As such he has no case to answer. The case against Edward Narayan is dismissed and he is acquitted.

Dated the 18th day of May 2012

SIR JOHN MURIA
Chief Justice