[1979] KILR 87
HIGH COURT OF KIRIBATI

Criminal Case No 29 of 1979

REPURLIC

v

RATON BATAROMA
AND
MAREA TITI

(O'BRIEN QUINN C.J.)

Betio: 30th August 1979

Criminal Law - intimidation - section 30 Public Order Ordinance (Cap 95) - causing employees in essential service to break contracts - section 29(1) (b) Industrial Relations Code, 1974 - unlawful strike - section 30 Industrial Relations Code 1974 - contract not broken - conviction on first count - acquittal on second count - sentence - residence orders.

The facts are set out in the judgment.

HELD: (1) That both accused by their behaviour and manner intimidated four technicians employed by the Government at the Headquarters of the Ministry of Works and Communications at Betio and were guilty of an offence under section 30 of the Public Order Ordinance (Cap 95);

(2) That the strike was not lawful under the terms of section 30 of the Industrial Relations Code 1974;

(3) That, as there was no evidence that any of the employees who were intimidated broke his contract of service but that they merely absented themselves from their place of work for a short time and then returned, no offence was committed under section 29(1) (b) of the Industrial Relations Code, 1974 and both accused were acquitted on the second count.

M. Takabwebwe, State Advocate, for the Republic
Both accused in person, unrepresented.

O'BRIEN QUINN C.J.:-

In this case both accused were charged with Intimidation contrary to section 30 of the Public Order Ordinance (Cap 95) and with causing employees in an essential service to break their contracts of service contrary to section 29(1) (b) of the Industrial Relations Code (Ordinance No 33 of 1974).

2. The particulars alleged against both accused were that on 24th August 1979, they entered the Headquarters of the Ministry of Works and Communications at Betio and behaved in a manner likely to cause Taninga Toom, Kauongo Tawita, Aukitino Ioane, and Jimmy Langley to be apprehensive as to what might happen to them and also that they caused the same four persons who were employed in an essential service to break their contracts of service.

3. Both accused, on arraignment, pleaded "Not Guilty" and the State called six witnesses to prove the two counts.

4. The main evidence was given by the four Technicians who said that while a "strike" was in progress they remained working and were in the Exchange Room at Betio on 24th August having fixed up two direct private lines and were awaiting a call from the junction to signal that the lines were operative when the first accused at about 9.30 in the morning knocked at the main door and asked to be let in. They let him in as he was a fellow employee in the same Ministry even though his place of work was quite a distance away at Takoronga. The first accused entered, followed by the second accused, and asked if the technicians were operating the telephone switch board to which they replied in the negative. The first accused then asked them how they had got into the Room, mentioned something about their helping him and later asked them to leave which they did after packing up their tools. The first accused then locked the door from the Communications Centre through which the Technician had entered. The four Technicians told the Court that they were afraid not to comply with the request of the first accused to leave the Room as they knew both of the accused were members of the Union and they feared what the Union might do to them if they refused.

5. The Commissioner of Labour gave evidence that there was industrial trouble in Betio since 24th August 1979 involving essential services such as water, Telecommunications, Power, Shipping etc. and that no notification under the Industrial Relations Code 1974 was ever received by the Minister for Trade, Industry and Labour.

6. Another employee of the Ministry of Works and Communications also gave evidence that both of the accused worked as Radio Operators, that they were members of the Union and that they took part in the industrial trouble at Betio around 24th August 1979.

7. On the second count the evidence of the four technicians was that when they packed up their tools and left the Exchange Room they did not cease work but went to the workshop and stayed there, except for a lunch break, for the rest of the day and then went home, not returning to work until 27th August 1979 which was the following Monday.

8. I found that both accused had a case to answer on each count and, after explaining their rights under section 194 of the Criminal Procedure Code (Cap 7) to them, they both chose to give evidence on oath and not to call witnesses in their defence.

9. The first accused admitted going to the Exchange Room on 24th August 1979 but said that he did so because he heard a telephone ringing and did not want anyone to operate the switchboard while a strike was on as if anything was broken or damaged the Union would be blamed. That was also the reason he gave for requesting the four Technicians to leave, which request, he said, was a friendly one. He admitted being a member of the Union but was deliberately vague on whether or not the Union supported the "strike" and on what the cause of the strike was.

10. The second accused admitted being with the first accused on the day in question but said that they went to the Headquarters only because it was pay-day and that they were really going fishing. He admitted entering the Exchange Room with the first accused but said he neither did nor said anything. He admitted that he was a member of the Union but had been a member for only four months.

11. On this evidence I found as a fact that both accused, by their behaviour and manner, when a "strike" was in progress, entered the Exchange Room without any reasonable excuse, enquired about the use of the switch board, which was none their of their business, and after enquiring about how the four Technicians had got into the Exchange Room, which was, again, none of their business, asked the four Technicians to leave work which they were lawfully doing and by so acting, caused the said Technicians to be apprehensive as to what might happen to them if they did not comply with the wishes of the Union of which the two accused were well-known to be members. I found also as a fact that the first accused Raion was the leader and did the actual speaking while Marea supported him even though he said nothing. However, Marea did not, at any time, dissociate himself from what Raion was doing or saying. I find that the strike was not lawful under the terms of section 30 of the Industrial Relations Code 1974 and that, even if the requesting of the Technicians to leave was in furtherance of an industrial dispute, I find that the dispute was not lawful and that it was outside normal permissible Union activities and thus wrong.

12. Accordingly, I found both accused guilty of Intimidation contrary to section 30(1) (a) of Cap 95 and I convicted them accordingly.

13. On the second count the essential element is the causing, in whatever way, of an employee in an essential service, to "break his contract of service". I have searched the evidence in vain for some indication that the four Technicians broke their contract of service with the Government of Kiribati but all the evidence indicates that all four of them remained in the employment of the Government and never withdrew their labour. I found that they were ready and able to work on 24th August 1979 and that the only time during which they absented themselves from work was over the weekend 25th and 26th August. Thus, I found that both accused did not commit the offence charged in the second count and I acquitted them accordingly.

14. I announced my findings of guilty and convictions on the first count and my acquittals on the second count to both accused at two o'clock today and then proceeded to sentence.

15. Both accused were young married men in their early thirties with children. They have both had many years of service as Radio Operators and have had clean Police records.

16. However, as I pointed out to the accused persons, Intimidation is a serious offence and that they deliberately frightened those four young men into doing something which they did not want to do. I told them that they deserved to go to Prison but that, having regard to their good records and long service, I would be lenient. I therefore passed a sentence of 6 months' imprisonment on the first accused and 3 months' imprisonment on the second accused and suspended both sentences for a period of one year and explained what that meant to both accused persons.

17. Further, in view of the fact that they used intimidation in a society not their own and that they abused the hospitality of the people of Betio, I made a Residence Order in respect of each of the accused under the provisions of section 37 of the Penal Code (Cap 8) under which the first accused was to be returned to his home island of Arorae and the second accused returned to his home island of Nikunau for a period of one year.

18. I also pointed out that as they were both Radio Operators, the first accused being an Aeronautical Radio Operator, they could still be retained in their present employment on their home islands, particularly as the new airstrip now being built on Arorae is expected to be ready in October.

19. As I have said, the findings were announced in open Court today at 2 o'clock and the sentences passed thereafter and this judgment sets out my reasons and is to be sent to both accused persons and to the Assistant Community Affairs Officer as I stated in Court.