IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 10 of 1987

Between:

THE REPUBLIC
Appellant

And

BANETI HUGILL
Respondent

T. Tabane for the Appellant
The Respondent in person

Date of Hearing: 14th April, 1988
Delivery of Judgment: 14th April, 1988

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

The respondent, Baneti Hugill, was charged with unlawful and indecent assault on a female. On 20th August 1985 the matter came before Topping J. sitting as a Single Magistrate in the Single Magistrate's Court for the Betio district. On that day Topping J. convicted the respondent and sentenced him to one month's imprisonment and made a residence order that the respondent reside in Abaiang for twelve months.

Topping J. as he later became, had, by a warrant of appointment dated 25th January 1983, been appointed to be a Commissioner of the High Court and by a further warrant dated 28th January 1983 had been appointed to be a Single Magistrate. On 15th March 1985 a warrant of appointment, appointing Mr. Topping to be a Judge of the High Court of Kiribati, with effect as from 1st February 1985, was executed by the Beretitenti. It appears that this warrant was not published by exhibition at the public office of the Beretitenti.

The respondent appealed from his conviction and sentence and by an amended ground of appeal claimed that "the learned Single Magistrate erred in law in that at the time the case was heard he had ceased to be a Single Magistrate and accordingly had no jurisdiction to hear the case."

The appeal came before the learned Chief Justice. He held that the appointment of Topping J. as a judge was valid, notwithstanding that the warrant of appointment had not been published by exhibition at the public office of the Beretitenti. This seems plainly right, since the appointment of a judge by the Beretitenti is not a legislative act and therefore does not fall within section 17 of the Interpretation and General Clauses Ordinance. The learned Chief Justice further held that once appointed a judge, Topping J. ceased to be a Single Magistrate and accordingly could not sit as a Single Magistrate on and after 1st February 1985. He held that the decision given on 20th August 1985 was accordingly no decision in law and null and void. He held that in these circumstances no appeal lay to him from the decision of Topping J. but he treated the case as if leave had been sought and granted to the respondent to apply for an order of certiorari. He declared the trial on 20th August 1985 to be null and void and quashed the conviction and sentence passed on the respondent.

The matter has been brought before the Court by the Attorney-General who has referred to the Court under s. 20 of the Court of Appeal Act three points of law for its consideration and opinion.

The jurisdiction of the Court to entertain references by the Attorney-General conferred by section 20(1) of the Court of Appeal Act 1980 which reads as follows:

"Where the High Court has acquitted a person or confirmed the acquittal of a person by a magistrates' court (whether in respect of the whole or part of any charge) the Attorney-General may, if he desires the opinion of the Court on a point of law which has arisen in the case, refer that point to the Court and the Court shall, in accordance with this section, consider the point and give their opinion on it."

The power of the Attorney-General to make a reference, and the jurisdiction of the Court to give their opinion on the reference, depend on the fact that the High Court has acquitted a person or confirmed an acquittal. This condition precedent was not satisfied in the present case. The respondent was of course convicted by Topping J. The learned Chief Justice held that the trial was null and void, and quashed the conviction and sentence. That did not amount to an acquittal, because the respondent could then have been tried again, but the Chief Justice rightly said that since the respondent had already served out the prison term imposed upon him a re-trial should not be ordered. This Court has accordingly no jurisdiction to entertain the reference and makes no order upon it.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal