[1979] KILR 79

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 21 of 1979

NEI MARITINA TEROUETE

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 6th July1979

Criminal appeal - appeal against conviction and sentence - no right of appeal - power of High Court to entertain appeal - sections 67(1) and 68 of Ordinance No 17 of 1977 - wrong person charged - evidence not sufficient - appeal allowed - conviction and sentence of $2 set aside - prosecutions for "untidy premises" should be taken only in cases where the untidiness is such as to cause a nuisance.

The appellant, the wife of the Catechist of the Catholic Mission at Tabiteuea North, was convicted and fined $2 for keeping untidy premises. The property concerned belonged to the Catholic Mission and the appellant was not responsible for it. She told the Magistrates that she had swept under the breadfruit tree on the morning on which she was charged and that she was not guilty if a few leaves fell since the morning.

HELD: That, although the appellant had no right of appeal, the fine being less than $10, nevertheless the Court had power under, section 68 of the Magistrates' Courts Ordinance 1977, to entertain the appeal and as the appellant was not the owner of, or responsible for, the property concerned she should not have been prosecuted, but that, in any event, the finding of a few leaves under a breadfruit tree did not constitute "untidy premises" and, where Mission property was concerned, advice and warning would be more suitable than prosecution in such cases.

Authorities referred to:

Magistrates' Courts Ordinance 1977
Sections 67(1) and 68.

O'BRIEN QUINN C.J.:-

This is an appeal against the judgement of the Magistrates' Court for the Tabiteuea North Magisterial District given on 6th June 1979 in which Nei Maritina Terouete the wife of the Catechist of the Catholic Mission at Tabiteuea North was convicted of keeping untidy premises and fined $2 to be paid within 2 weeks failing which payment she would go to prison for one week.

2. In terms of section 67(1) of the Magistrates' Courts Ordinance 1977 (No 17 of 1977) the appellant has no right of appeal as the fine is less than $20 and the default period of imprisonment is only one week.

3. However, as I am permitted by section 68 of the same Ordinance to entertain an appeal if I see fit, in this case I do so see fit as the appellant should never have been charged or, if charged, it should have been proved that it was she who was responsible for the premises and was the owner or responsible occupier of the premises.

4. In this case, as the property which was alleged to be untidy was the property of the Catholic Mission, it is the representative of that Mission who should have been charged. The appellant was merely living on the premises as the wife of the occupier.

5. Further, the fact that certain leaves were found under a bread-fruit tree is not evidence that the premises were untidy. Untidy premises means that the area in question is in a dirty unkempt state. This was not established by the prosecution and the appellant said, on oath, that she had swept the leaves in the morning and that more leaves must have fallen just before the Police Constable came on the scene.

6. I must allow this appeal and order that the fine, if paid, be refunded and I would suggest that Magistrates, in future, should require more evidence than the presence of leaves on the ground before convicting of this offence.

7. The Police, too, should not charge such offences unless the untidiness really warrants such a charge and, in most cases, particularly where a Mission or other responsible authority is involved, a word of advice or warning in the proper quarter should be sufficient unless the untidiness is very bad and causing a nuisance.

8. The appeal is allowed and the fine set aside.