IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 3 of 1988

Between:

REPUBLIC
Appellant

AND

TAUTI NGAUEA
Respondent

Mr. Altments for Appellant
Mr. Koaru for Respondent

Date of Hearing: 14th March 1989
Delivery of Judgment: 16th March 1989

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

The respondent, Tauti Ngauea, was charged that on 15 January 1985 at Makauro village, island of Nonouti, he murdered one Katiotio Babiano, who was a fellow villager. The trial was held before the learned Chief Justice, Maxwell C.J., who found that during a fight between the two men the respondent inflicted a wound on the deceased which caused his death, but that at the relevant time the respondent had not formed an intention to kill or cause him grievous bodily harm. The accused was acquitted of that charge, but was found guilty of manslaughter under section 192 of the Code and sentenced to three years' imprisonment.

Following the acquittal, two matters were referred to this Court for its consideration and opinion under section 20(1) of the Court of Appeal Act 1980, but only one was argued as a point of law arising in the case.

The matter referred arose out of a submission by counsel for the accused, at the close of the case for the prosecution, that there was insufficient proof of malice aforethought on the part of the accused which, in the circumstances of the case, on the murder charge required proof of an intention to cause grievous bodily harm.

This submission was rejected by the learned trial judge who, after reserving the matter for consideration, prefaced his reasons as follows:-

"57. The Practice Note issued by the Divisional Court [1962] 1 All ER 448, in England is by the Constitution part of the Law of Kiribati. The note sets out the considerations which should guide the courts. These are,

(1) There has been no evidence to prove an essential element of the alleged offence.

(2) When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it."

The practice note deals with "a submission of no case", as Lord Parker C.J. termed it before justices and is in the following terms:-

"Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."

The point of law on which this Court's opinion is sought is in the following terms:-

"Is it correct, as stated in paragraph 57 of the judgment, to regard a Practice Note issued by the Divisional Court of the United Kingdom 1 All E.R. 448, or any other Practice note as part of the law of Kiribati?"

Practice notes issued either in the United Kingdom or in Kiribati have not been regarded as part of the law in either country. It is sufficient to refer to Halsburys' Laws of England, Fourth Edition, Volume 10, para 909, in which it is stated merely that practice directions and notes "although not having statutory authority, represent the views of the judges.....on particular matters of practice and procedure".

We would accordingly answer the question, No. We should add that the principles enunciated in the practice note in question were proper to be applied in Kiribati.

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