IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
KIRIBATI

Criminal Appeal No 3 of 2009

BETWEEN:

THE REPUBLIC
APPELLANT

AND:

KATIEBWA KARAITI
RESPONDENT

Counsel: Pauline Beiatau for appellant
Sr Bernadette Eberi for respondent

Criminal Appeal 4 of 2009

BETWEEN:

THE REPUBLIC
APPELLANT

AND:

TERUKA TAERA
RESPONDENT

Counsel: Pauline Beiatau for appellant
Raweita Beniata for respondent

Criminal Appeal 10 of 2009

BETWEEN:

THE REPUBLIC 
APPELLANT

AND:

COLLIN PANITAI 
RESPONDENT

Counsel: Pauline Beiatau for appellant
Sr Bernadette Eberi for respondent

Criminal Appeal 11 of 2009

BETWEEN:

THE REPUBLIC
APPELLANT

AND:

MAINETI BUREIETA
RESPONDENT

Counsel: Pauline Beiatau for appellant
Banuera Berina for respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Date of Hearing: 21 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

[1] In each of these cases, the Republic has appealed against an order of the Chief Justice staying permanently the prosecution of the particular accused on the grounds of delay.

[2] When the cases were called in this Court, Mr Lambourne acknowledged that there is no right of appeal. The Republic’s right of appeal in a criminal case is limited to appeals against sentence or an acquittal: section 19A of the Court of Appeal Act. The appeals are accordingly dismissed.

[3] Notwithstanding this outcome, it may be helpful for this Court to make some brief observations on the undoubted power the High Court has to stay a prosecution on account of delay. 

[4] Since the cases came before this Court we have had the advantage of reading the comprehensive and most helpful judgment of the Chief Justice dated 5 August 2003 in Criminal Cases 2 of 2003 (Ioborau Kaiue), 25 of 2003 (Betero Etuati) and 29 of 2003 (Tekaribwa Kimaere). In that judgment the Chief Justice discussed the relevant statutory and common law requirements in some detail. We generally concur with his reasoning, but there is one respect in which we must differ from him.

[5] The power to order a stay is a common law one, an aspect of the more general power of a Court of competent jurisdiction to address an abuse or misuse of process. Delay is also a subject addressed in very similar terms in many constitutions, including the Constitution of Kiribati, section 10 (1): "If any person is charged with a criminal offence…..the case shall be afforded a fair hearing within a reasonable time." It is also the subject of article 6 (1) of the European Convention for the Protection of Human Rights and Freedoms, which is scheduled to the United Kingdom’s Human Rights Act 1998, which has been considered in a number of recent cases notably by the House of Lords in Attorney General’s reference (No 2 of 2001) [2004] AC 72.

[6] Cases on the power at common law include Attorney General’s Reference (No 1 of 1990) [1992] 3 All ER 169 (Court of Appeal) and Tan v Cameron [1992] AC 205 (Privy Council). In the first of these cases, Lord Lane CJ, delivering the judgment of the Court, said at page 176:

Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust.

In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution.

[7] These observations were approved in the second of the cases at page 225, where Lord Mustill, delivering the advice of the Board, said: 

Naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account. This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair.

[8] There is thus a balance to be struck between two public interest considerations. One is that those who have or are alleged to have committed a crime should be brought to trial. The other is that persons alleged to have committed a crime should not be prejudiced in their defence by prosecutorial delay. Striking the balance in an individual case will depend on a consideration of all the facts of the matter.

[9] Thus, and this is where we differ from the Chief Justice – the Court may not adopt an arbitrary time limit for the completion of procedures. The length of the delay is in every case but one of several factors to be considered by the Court in the exercise of its discretion.

[10] There has clearly been a serious problem in Kiribati with unexplained delays occurring in the office of the Attorney-General. We have no doubt that in his very necessary efforts to remedy them, the Chief Justice will have regard to the observations and the principles enunciated in the authorities we have cited.

Hardie Boys JA
Tompkins JA
Fisher JA