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Baebo v Republic [2015] KIHC 75; Criminal Appeal 12 of 2014 (12 October 2015)

HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL APPEAL NO. 12 OF 2014

BETWEEN

KABWENEA BAEBO
APPELLANT

AND

THE REPUBLIC
RESPONDENT

12 October 2015

Mr Aretaake Ientaake for Appellant
Ms Pauline Beiatau for Respondent

EX TEMPORE JUDGMENT

Zehurikize, J: The appellant was, in the lower court, charged with Common Nuisance contrary to section 165 of the Penal Code and Contempt of Court contrary to section 6 of the Magistrates' Court Ordinance. She was found guilty on both counts and sentenced to three months on the first count and nine months on the second count.

On appeal Counsel for the appellant raised three grounds namely:

(1) That the complainant has no locus standi to bring the proceedings;

(2) That the trial court did not comply with the standard of proof;

(3) That the sentence of nine months was excessive.

I have considered submissions by both Counsel – Mr Ientaake for the appellant and Ms Beiatau for the respondent. I am inclined to agree with Ms Beiatau that in the lower court as now in the High Court the Prosecutor was the Republic and the complainant is merely a witness. In any case even if the complainant had prosecuted the case herself she had the locus standi since she was the successful party in the civil case where an order, allegedly contempted, was made in her favour. In the premise the first ground of appeal fails.

On the second ground – there is evidence on record that she went to the toilet and poured sand in it. The order prohibited her from using the toilet. Even in his submission Counsel appears to admit this fact. I am only disturbed by the offence of Contempt of Court and the conviction and sentence thereon. The offence appears to be founded on section 6 of the Magistrates' Court Ordinance which stated:

"6. Magistrates' Court have the same powers as the High Court to deal with contempt of their authority".

In my view this section does not create an offence nor does it prescribe a punishment thereon. I do not find that this directive per se is an offence created by law. I do find that the trial of criminal proceedings under section 6 of the Magistrates' Court Ordinance and the conviction and sentence thereon were a nullity.

I find, however, that the conviction and sentence on the second count cannot be defaulted given the evidence on record. The appeal is allowed in as far as the trial of Contempt of Court is concerned.

Since it is indicated that by the time she was granted bail she had served three months' imprisonment, it follows that the sentence in respect of the second count was fully served. This is because the sentences in both offences were to run concurrently. To that extent she has no more sentence to serve. The appeal is allowed to that extent.

Dated the 12th day of October 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge