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Karakaua v Republic [2015] KIHC 3; Criminal Appeal 08 of 2014 (2 March 2015)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL APPEAL NO. 8 OF 2014

BETWEEN

TARATAAKE KARAKAUA
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before: The Hon Justice Vincent Zehurikize

2 March 2015

Ms Batitea Tekanito for Appellant
Mr Taburuea Rubetaake for Respondent

RULING

Zehurikize, J: I have considered submissions by both Counsel and studied the record. The Applicant was found guilty and convicted on both counts of Assault Causing Actual Bodily Harm contrary to section 238 of the Penal Code and a second count of Cruelty to Children contrary to section 226(1) of the Penal Code.

Definitely I do not agree with Ms Tekanito that the facts should have been stated on oath. That is not the law. The prosecutor is supposed to state the facts of the case in a bid to help the accused understand all the ingredients of the offence so as to determine whether the plea of guilty is unequivocal or not.

The procedure for taking a plea of guilty briefly is as follows:

(1) The charge is read and explained to the accused who is asked whether he admits the charge or not;

(2) If he admits the charge/offence, the trial magistrate then goes ahead to enter a plea of guilty;

(3) After the plea of guilty has been entered, the then prosecutor stands up to state the facts which should disclose all the ingredients of the offence;

(4) The accused is again asked to state whether the facts are true or not. In the instant case this important step was omitted. If the accused admits that the facts are true the then trial magistrate will go ahead to find him guilty on his own plea and convict him as charged;

(5) After the conviction the trial magistrate is supposed to hear from the prosecutor any submission as to the aggravating or mitigating factors. Thereafter the Court hears submissions from the convict or his counsel on mitigating factors. It is only after hearing from both sides that the magistrate can go ahead and pass a sentence bearing in mind the submissions made by both sides. This important process was omitted in the instant case;

(6) In a case like the instant one where the accused was charged with two counts, the facts stated before conviction must disclose ingredients of the two offences.

On sentencing, the magistrate must specify what sentence is imposed for each offence/count and also whether the sentences will run concurrently or consecutively. This was not done in the instant case.

I agree with both Counsel that there were irregularities in the way these proceedings were conducted. For that reason both the conviction and sentence cannot be allowed to stand. The conviction is quashed and the sentence is set aside and the trial of the case is accordingly ordered.

It is hoped that the trial will be conducted, in accordance with the law, as soon as possible.

Dated the 2nd day of March 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge