[1979] KILR 13

HIGH COURT OF THE GILBERT ISLANDS

Criminal Revision Case No 1 of 1979

REGINA

v

TION KIATOA

(O'BRIEN QUINN C.J.)

Betio: 22nd January 1979

Criminal Revision Order - section 81(1) of Magistrates' Court Ordinance 1977 - criminal procedure - police investigating officer also prosecutor - pleas of guilty - plea of guilty not properly recorded - section 191(2) of Cap 7 - accused not asked if he agreed to the facts - no convictions recorded - previous convictions not properly dealt with - concurrent and consecutive sentences - section 290(1) of Cap 7 applied - sentences reduced as accused treated as first offender.

The accused was charged before the Onotoa Magistrates' Court with assaulting a police officer, resisting arrest, damaging property and being drunk and disorderly and on his pleading guilty to all the charges, was sentenced to, 3 months', 6 months', 6 months' and one month's imprisonment making a total 16 months' imprisonment in all. Due to the fact that there were certain irregularities on the face of the Record the case was reviewed and it was -

ORDERED: (1) That, wherever possible the police officer who investigated the case should not prosecute it in Court;

(2) That when an accused pleads guilty his plea should be recorded in the exact words used by him as nearly as possible and not just recorded as "Guilty";

(3) That section 191(2) of the Criminal Procedure Code should be followed;

(4) That the accused should be asked if he agrees with the facts as given by the prosecution and that if he does not agree with the facts a plea of not guilty should be entered;

(5) That when an accused has been found guilty he should be convicted and such conviction entered on the record unless he is to be absolutely or conditionally discharged;

(6) That as any previous convictions that the accused may have had were not properly before the Court and as the accused was never asked if he agreed or disagreed that he had been so previously convicted the Court would treat him as a first offender;

(7) That as none of the irregularities, except that relating to the previous convictions, occasioned a failure of justice the Court would apply the provisions of section 290(1) of the Criminal Procedure Code (Cap 7);

(8) That as all the offences out of which the charges arose took place at the same time the sentences should have been ordered to run concurrently and not consecutively;

(9) The sentences would be accordingly reduced to 6 weeks', 3 months', 6 weeks' and fifteen days' imprisonment and ordered to run concurrently.

Authorities referred to: -

R v Binoka Randolph 1977 G.I.L.R. 35
R v Erota Moantau 1977 G.I.L.R. 38
R v Itinimare Toaieta 1978 G.I.L.R. 17
Teewae Toma v R HC Cr Appeal No 21 of 1978 (not reported)
R v Rimon Tavanga 1977 G.I.L.R. 41
High Court Circular No 2 of 1978
Instructions to Court Clerks No 5 of 1978

O'BRIEN QUINN C.J.: -

This case came to my notice on my perusal of the Monthly Return of Cases heard by the Magistrates' Court for the Onotoa Magisterial District for the month of December 1978 and I called for the Record under the powers vested in me by section 81(1) of the Magistrates' Courts Ordinance 1977.

2. The facts of the case were that the accused who was drunk on 17th November 1978, approached Constable Iaoniman Kiatoa in the Cooperative Store at Buraitan while the Constable was on duty and in the process of dealing with another person alleged to be drunk. The Constable told the accused not to bother him whereupon the accused swung a blow at him and the Constable proceeded to arrest him. The accused resisted being arrested and struggled with the Constable during the course of which they both fell on the floor and the Constable's uniform was torn and a button lost from it. The accused pleaded guilty on 8th December 1978 and was sentenced by the Magistrates' Court sitting at Buraitan on Onotoa to three months' imprisonment on the first count of assaulting a Police officer contrary to section 240(b) of the Penal Code, to six months' imprisonment on the second count of Resisting arrest contrary to section 117 of the Penal Code, to six months' imprisonment on the third count of damaging property contrary to section 319 of the Penal Code and to one month's imprisonment on the fourth count of being drunk and disorderly contrary to section 167(d) of the Penal Code (Cap 8). No order was made as to how the sentences should be served and, therefore, under the provisions of section 27 of Cap 8, they must be treated as being consecutive. The accused, therefore, was sentenced to 16 months' imprisonment.

3. I called for this Record in view of the fact that a number of irregularities were apparent.

4. Justice should not only be done, it should be seen to be done and to be done impartially. In this case the Police Officer who was assaulted and resisted was also the Police Officer who prosecuted the case. In strict impartiality that officer should not have prosecuted as his disinterestedness would be automatically suspect. Unfortunately such a course is often dictated by circumstances and, on many Islands, the officer involved in the case or the officer who has investigated the case must, of necessity, also prosecute it. This practice has been adversely commented upon by Courts in other countries and I also deplore it. However, in most instances it cannot be helped due to the small number of Police available on outer islands. In the future, steps should be taken, wherever and whenever possible, to ensure that the officer prosecuting a case should not have been involved in it in any way and should, in particular, not be a witness in a case which he is prosecuting. In the present case, as the accused pleaded guilty, it was not necessary for the Constable to give evidence as well as prosecute and no harm was done.

5. The accused, according to the Record, pleaded guilty but all that appears is the word "Guilty" four times after the figures (1), (2), (3) and (4) respectively. That is not the correct procedure according to section 191 (2) of Cap 7 where the following words appear -

"If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him unless there shall appear to it sufficient cause to the contrary."

6. I have had occasion to mention this point before in High Court Criminal Revision Case No 2 of 1977 (R v Binoka Randolph) and in HC Case No of 1977 (R v Erota Moantau) and Magistrates should read these cases which have been sent to them and should follow the law as laid down in section 191(2) of Cap 7. The reason for this is that an accused may not really be pleading guilty at all but merely giving an explanation which in reality amounts to a plea of "not guilty" and, in the interests of justice, should be given the opportunity of making his case in a properly conducted trial. Having regard to the facts of this case it would not appear that, if a trial were held, any different finding would have been made and I invoke my powers under section 290(1) of Cap 7.

7. I also noticed on the Record that, when the facts were given by the prosecution, the accused was not asked whether or not he agreed that they were correct. That is not the proper procedure. I set out proper procedure in High Court Criminal Revision Case No 3 of 1978, R v Itinimare Toaieta, and I would draw the Magistrates' attention to paragraph 7. I would also draw attention to High Court Criminal Appeal No 21 of 1978 Teewae Toma v R in which the same point arose. The Clerks of Court, in all Magisterial Districts should take note of the procedure that when the prosecution gives the facts on a plea of guilty the accused must be asked whether or not he agrees with the facts and, only, if he agrees can he be found guilty and convicted. If the accused does not agree with the facts then either his plea may be treated as one of "not guilty" or the prosecution given the opportunity of an adjournment to take advice on how to proceed further. This is an important matter but I do not consider that any injustice was occasioned in this case and I again apply the provisions of section 290(1) of Cap 7.

8. I note on the Record also that while the accused was found guilty on all four counts he was not convicted. Again I would draw attention to section 191(2) of Cap 7 and to Regina v Erota Moantau HC Cr Case No 3 of 1977. In the circumstances, I record a conviction on each count and amend the Record accordingly.

9. When the accused's previous convictions were called for all that appears on the Record is: -

"P.C. 2nd time".

This is not sufficient. It means nothing. And further, there is not record of whether or not the accused agreed that he had had any previous convictions. The proper procedure is set out in R v Erota Moantau HC Cr Case No 3 of 1977 and I would strongly advise all Magistrates and Court Clerks to read that case and to read that case and to read section 125(1) of Cap 7 and to read, again, my High Court Circular No 2 of 1978 and my Instructions to Court Clerks No 5 of 1978 in which all these procedures are set out in detail in English and in Gilbertese.

10. In view of the fact that the note on the Record in respect of previous convictions is incomprehensible and as the accused is not recorded as having agreed with it in any event I must consider that the accused had no previous convictions and treat him as a first offender.

11. Accordingly, I must reduce the sentences and, also, in view of the fact that the offence all took place at the same time and were all part of the one transaction, I must order them to run concurrently and not consecutively. My direction on this particular aspect of sentencing should be studied again. It will be found in R v Rimon Tavanga High Court Criminal Revision Case No 4 of 1977 where consecutive and concurrent sentences are dealt with.

12. I consider that the conduct of the accused was bad but, in view of the fact that he must be treated as a first offender, I reduce the imprisonment on the first count to 6 weeks, on the second count to 3 months, on the third count to six weeks and on the fourth count to fifteen days. All this sentences are ordered to run concurrently with the result that the accused will now serve a total sentence, on these counts, of 3 months' imprisonment from 8th December 1978 instead of 16 months' imprisonment.

13. This Order is to be communicated at once to the Magistrates' Court at Onotoa and to the I.E.O. at Onotoa to the Superintendent of Prisons, Betio so that the necessary changes in the warrant of commitment can be made and acted upon without delay.