IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 12 of 1987

Between:

THE REPUBLIC
Appellant

AND

ARITIERA BAURO
Respondent

T. Tabane for the Appellant
The Respondent in person

Date of hearing: 18th April 1988
Delivery of Judgment: 19th April 1988

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

The points of law referred to this Court by the Attorney-General for its consideration and opinion arose in criminal proceedings begun in the Single Magistrate's Court at Betio. The accused, a college principal within the civil service of Kiribati, was charged with five offences arising out of the conduct by him of certain of his administrative duties. On four of those charges he was acquitted. On the remaining charge, that of abuse of office under the Penal Code, s. 90(1), he was found guilty and sentenced to twelve months' imprisonment.

The facts of the case, so far as they are material to this reference, concern the administration by the accused of an aid project grant for the building of an extension to the college, but more particularly the provision of the necessary furniture, which was included in the project.

The project was scheduled for completion during the financial years 1980-1981 and 1981-1982. But the accused delayed taking action until finally in September, 1982 he formed a firm under the name of Boraraoi Handcraft Industry which consisted of his wife and himself and also a friend, a carpenter, who was to make the furniture. The furniture was made and as it was delivered payment was made on vouchers submitted to the Ministry of Finance. With some of the proceeds the accused made a down payment of $4000 for a car. As no proper accounts were kept the Magistrate found it not possible to determine the amount of profit earned by the business, but he was satisfied that it amounted, at the least, to the down payment on the car.

The aid proposal assessed the cost of the furniture to be supplied at $56,000. The actual amount charged by the firm was $43,344.88 or more than $12,000 less than the assessment, but that saving went to the aid donor in the United Kingdom.

As the aid proposal stated that all materials and equipment were to be ordered through the Ministry of Finance and the construction work was to be carried out by the Ministry of Communication and Works, it precluded putting the project or any part of it out for private tender. So the accused's enterprise was plainly in breach of the duties of his office.

His defence was that he had acted throughout in good faith, and that, after delaying too long, he "panicked", and there was then no time for the government joinery department to make the furniture. He claimed that the Ministry of Works Superintendent told him, when the accused called on him, that they were too busy to undertake the work, so he took the course he did for the benefit of the College. But that conversation was denied by the Superintendent. The Magistrate disbelieved the accused; he found that the accused was aware that he was to go through the Ministry, and that he had been dishonest in his dealing. He found the accused guilty of the "felonious variety" of the offence provided under s. 90(1). That section, which it is convenient to quote in full, is in the following terms:-

"(1) Any person who, being employed in the public service does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the right of another, is guilty of a misdemeanour.

If the act is done or directed to be done for the purpose of gain, he shall be guilty of a felony and shall be liable to imprisonment for 3 years."

On appeal to the High Court, the Chief Justice (Jones C.J.) set aside the verdict of guilty of the offence against s. 90(1) and substituted a verdict of not guilty.

The first question asked in the reference is as follows:

(1) Whether Section 90 of the Penal Code (Cap 67), is limited to acts of persons employed in the public service which oppress private citizens.

Put in another way, this question asks whether "the right of another" in s. 90(1) refers only to the rights of individual citizens, or whether it refers also to the rights of the government or a department of the government.

Reference was made to the definition of "person" contained in s. 3 of the Interpretation and General Clauses Ordinance, which is expressly applied to the Penal Code by s. 3 of the Code. By the definition "person" includes "any public body and any body of persons, corporate or non-incorporate." However that definition has no direct application to the critical words of s. 90(1). Although "another" certainty includes "another person", and the word "person" is not expressly used in the relevant phrase, so that the words of the definition do not apply.

However, the expression "rights of another" is a wide one. It appears to comprehend any other entity which can have rights. It is not necessary to apply the definition to reach the conclusion that the phrase in s. 90(1), in its natural meaning, refers to public as well as private rights.

There is no reason to restrict the generality of the meaning of the phrase. Recourse to the common law rules is not necessary because the words of the Code speak for themselves. The fact that the forms of indictment prescribed to illustrate the operation of the corresponding provisions of s. 92 of the Queensland Criminal Code appear to apply only to cases in which the rights affected were those of private individuals does not mean that the court is entitled to place on the words of the section a limitation which they do not contain.

The question should be answered, "No".

The second question is:

(2) Where there is a contract between A and B which provides for work to be done by and payment to be made to C, whether a person employed in the public service who causes that work to be done by and payment made to D acts in a way "prejudicial to the rights of another" within Section 90 of the Penal Code (Cap 67).

The answer to this question presents no difficulty. Clearly when a payment is made to D and C had a right to receive it (even if the right was conditional on performing work) the rights of C are prejudiced. That is so even if C is the government or a public body.

The second question should be answered, "Yes".

The third question is as follows:

(3) Where certain particulars in an information, the combination of which constitutes a complete separate offence are proved, whether a person can be convicted of that offence although he was not charged with it.

The answer to this question depends on the effect of s. 157 of the Criminal Procedure Code. That section reads as follows:

"(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it."

Section 157 deals only with cases in which a person charged with a greater offence may be convicted of a lesser offence. A lesser offence is not simply an offence which carries a lesser punishment, but an offence constituted by some, but not all, of the elements of the offence with which the accused was charged. For example, a person charged with assault occasioning actual bodily harm might be convicted of common assault. Similarly, robbery would be a lesser offence if the charge were robbery, being armed with an offensive weapon. Indeed the section of the Penal Code with which we are now concerned provides and example - a person charged under the second paragraph of s. 90 (1) might be convicted of an offence under this first paragraph of that subsection. However, s. 157 of the Criminal Procedure Code would not provide authority for a person charged under s. 90(1) of the Penal Code to be convicted under s. 88 of the Code.

The question should be answered, No, except in the case of a lesser offence as defined above.

The fourth question is as follows:

(4) Where on an appeal from a magistrate court to the High Court, the High Court is satisfied that the accused in the lower court is not guilty of the offence charged but is guilty of another offence, and in circumstances where the magistrates court itself had no power to convict of that other offence, whether the High Court may remit the case to the magistrates court with a direction to that court to convict and/or may itself convict of that other offence.

It was submitted on behalf of the Attorney-General that s. 280(1) of the Criminal Procedure Code would justify and affirmative answer to this question.

Section 280(1) is in the following terms:

"At the hearing of an appeal the High Court shall hear the appellant or his advocate, if he appears, and the respondent or his advocate, if he appears, and the High Court may thereupon confirm, reverse or vary the decision of the magistrates' court, or may remit the matter with the opinion of the High Court thereon to the magistrates' court, or may make such other order in the matter as to it may seem just, and may by such order exercise any power which the magistrates' court may have exercised:

Provided that the High Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

That submission cannot be accepted. Section 280 allows the High Court to make any order that is just, provided that the order was one that could have been made by the magistrates' court. It is designed to enable the High Court to do what the magistrate ought to have done, but it does not authorize the High Court to make an order which would have been beyond the power of the magistrate. If, in a particular case, the magistrate could not have convicted, the High Court on appeal may not do so.

The question should be answered, No.

The order of the Court will be:

Questions answered as follows:

(1) No.

(2) Yes.

(3) No, except in the case of a lesser offence as defined in the reasons for judgement.

(4) No.

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