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Republic v Mwakeran [2019] KIHC 51; Criminal Appeal 3 of 2016 (18 April 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL APPEAL NO. 3 OF 2016

[THE REPUBLIC APPELLANT
[
BETWEEN [AND
[
[IRATA MWAKERAN RESPONDENT

Before: The Hon Chief Justice Sir John Muria

13 March 2019

Ms Pauline Beiatau for the Appellant
Ms Kiata Kabure for the Respondent

JUDGMENT

Muria, CJ: This is an appeal by the Republic against the decision of the Magistrates’ Court made on 29 June 2016 in Criminal Case Bet Crim 550/15. The appellant’s Amended Notice of Appeal raised only one (1) ground of appeal, namely:

“The Magistrate erred in dismissing the case and acquitting the accused without proper consideration of relevant factors of the case”.

Brief Background

2. The respondent was charged with two (2) counts of Indecent Assault, contrary to section 133(1) of the Penal Code; one (1) count of Common Assault, contrary to section 237 of the Penal Code; and one (1) count of Committing Domestic Violence offences contrary to section 33(2) of the Family Peace Act 2013. The respondent pleaded Not Guilty to all the charges.

3. The case was first listed for 23 November 2015. The case did not proceed on that date because the prosecution (the appellant) failed to serve the accused (respondent) with the summons to attend Court. A new hearing date was fixed for 7 December 2015 and the appellant was ordered to serve the summons on the respondent to attend Court. However, the case did not proceed on
7 December 2015. A new hearing date was fixed for 23 December 2015.

4. Due to non-disclosure of materials on the case, trial did not proceed on
23 December 2015. The case was adjourned to 5 January 2016 to enable disclosures to be made.

5. On 5 January 2016 the case was called. The prosecution advised that they had two witnesses to call. The prosecution commenced its case and called one witness. The case was adjourned to 14 January 2016 for continuation.

6. When the case was called on 14 January 2016, and before the prosecution continued with the first witness’ evidence, Counsel for the prosecution applied to add one more witness. Counsel for the accused objected to the application, since the trial was already half-way through. The Court heard arguments from both sides and adjourned to the next day 15 January 2016 for ruling.

7. On 15 January 2016, the Single Magistrate ruled in favour of the prosecution, allowing the prosecution to call their third witness. The Court directed disclosure to be given to the defence with regard to the new prosecution witness. The case was adjourned to 3 February 2016 for continuation.

8. The case was further adjourned on 3 February 2016 since the prosecution applied to amend the charges. The case was again adjourned to a date to be fixed. The Court fixed the next hearing date for 18 February 2016. The hearing on 18 February 2016 did not proceed as the accused did not attend because he had not been served with the summons, notifying him of the hearing date. The case was again adjourned to 14 June 2016.

9. When the case was called on 14 June 2016, Counsel for the prosecution did not attend because she was in Kiritimati Island attending the High Court session in Kiritimati Island. Another Counsel, Ms Tawita, from the Attorney General’s Office, rang the Court to advise that Ms Pauline Beiatau was in Kiritimati Island and apologised to the Court. The Single Magistrate adjourned the case to 2.00 pm on 29 June 2016 to have Counsel appear in Court to explain the reason for the non-attendance by Counsel for the prosecution.

10. The case was called at 2.00 pm on 29 June 2016. There was no appearance for the prosecution. The Single Magistrate then dismissed the case for
non-appearance by the prosecution.

Issues

11. It is submitted by Ms Kabure of Counsel for the respondent that the issue for the Court to determine is whether the Single Magistrate erred in law and in fact in dismissing the case for non-appearance of the prosecution. In the Court’s view and assuming that the Court has power to dismiss the case for
non-appearance of the prosecution on 14 June 2016 and 29 June 2016, the question must be whether the Court had properly exercised its discretionary power, in the circumstances of the present case, in dismissing the case against the accused.

Power to dismiss a case

12. The Court’s power to dismiss a criminal case against the accused is set out in sections 185 and 190 of the Criminal Procedure Code. Those sections provide as follows:

“185(1) If, in any case which a magistrates’ court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear by himself or by his advocate, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the court shall think fit”.

“190(1) If at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which has made the order of adjournment, such court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs as the court shall think fit”.

13. In addition, rule 14(1) of the Magistrates’ Court Rules provides as follows:

“14(1) If at the time and place appointed the person charged is before the court and the person making the charge, having had due notice, does not appear, the court may dismiss the charge or adjourn the hearing as to it seems fit”.

14. There is clear power under the above provisions in the Court to dismiss a criminal case brought against an accused if the prosecution fails to appear in Court to prosecute the case. This is the same power that the Courts use to dismiss a case for, what is sometimes termed as, ‘want of prosecution’ in a criminal case. The Court’s power to dismiss a case for want of prosecution arises where a complainant fails to appear in Court to support the prosecution of a case which he or she lodged against an accused person; or where the prosecution fails to adduce evidence to support the alleged offence brought against an accused; or for failure by prosecution to appear in Court to prosecute the case brought against the accused.

15. In the present case, the record shows that the prosecution had already called the complainant who gave her evidence in Court. The case was adjourned and the prosecution Counsel failed to appear at the adjourned hearings on
14 June 2016 and 29 June 2016. The Court has power to dismiss the case for
non-appearance of the prosecution at an adjourned hearing. That power is provided for in section 190(1) of the Criminal Procedure Code (above).

16. Having said that, it must be observed that the Court’s power under sections 185(1) and 190(1) of the Criminal Procedure Code and rule 14(1) of the Magistrates’ Court Rules is not couched in absolute term. The Court exercises its coercive power under those provisions “if it thinks fit” which entails some consideration be given to the circumstances of the case at hand, even if the Court has power to dismiss the case for non-appearance of the prosecution at the adjourned date.

17. As I have indicated above, that the prosecution had already called the victim and she gave evidence of what the accused did to her. There was evidence from the victim that the accused touched and fondled with her breast, butt and backside. She also testified that the accused assaulted her with a “bwai n katomatangke” (pipe used for connecting to a water tank). The victim’s evidence appears to suggest that there were more than one or two incidents of what the accused did to her.

18. There is clear prima facie evidence shown against the accused on the evidence of the victim alone. Even if the prosecution case had stopped at that stage and a submission of no case to answer were to be made by the defence, the Single Magistrate would, in all likelihood, have found that there was a case for the accused to answer. A non-appearance by the prosecution on 14 June 2016 and 29 June 2016 would not change the fact that there was already sufficient evidence before the Court for the accused to answer.

19. Looking at the record, the Single Magistrate did not advert her mind to such a salient feature of the prosecution case against the accused in this case. Had she done so, it would immediately become apparent to her that to dismiss the case against the accused, even for non-appearance of the prosecution would not be appropriate in the circumstances of the present case. An option open to the Single Magistrate in such a situation would be to adjourn the case with a penalty of costs against the prosecution, rather than dismissal.

20. The power of the court to dismiss a case after an adjournment is still available to the Court under section 190(1) of the Criminal Procedure Code and rule 14(1) of the Magistrates’ Court Rules. That power must be exercised by the Court with discretion and in the circumstances fitting to do so.

21. In her submission, Ms Beiatau tried to explain the reasons for the
non-appearance of Counsel on 14 June 2016 and 29 June 2016. Counsel relied in support the affidavit of Ms Tewia Tawiita sworn to on 5 July 2016 and filed in this appeal. The explanations offered were distorted and unconvincing. There might well be some misunderstanding between the Court Clerk and Counsel as to the date and time for the hearing of the case. But a legal practitioner who had carriage of the case was duty-bound to properly communicate with the Counsel for the accused and the Court in advance of her unavailability to be present at the hearing of the case due to her other Court commitments, such as attending High Court sitting in Kiritimati Island. Failing to do so could result in confusion as to what to do with the case as well as who was to attend to the matter in the absence of Counsel who has carriage of the case. The explanations for failure to attend Court contained in the affidavit of Ms Tawiita are not acceptable to persuade this Court.

22. The appeal, however, succeeds for the reasons stated earlier in paragraphs 17-20 above. The appeal is allowed. The decision of the Single Magistrate dismissing the charges against the accused is quashed. The criminal case Bet Crim 550/15 is to return to the Single Magistrate to continue with hearing and determining it.

Dated the 18^th day of April 2019

SIR JOHN MURIA
Chief Justice