Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Areieta v Reginam [1979] KIHC 6; 1978 KILR 24 (14 February 1979)

[1979] KILR 24

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 48 of 1979

BWEBWETAKE A. AREIETA

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 14th February 1979

Criminal appeal - appeal against conviction - drunk and disorderly - resisting arrest - argued that appellant was not drunk - evidence of drunkenness - appellant not aware that being arrested - did not resist arrest - element of 'mens rea' missing - decision upheld - appeal dismissed.

The appellant, a Member of the House of Assembly, was ordered by the Speaker to leave the House, and, while outside the House, he tried to go back in but was restrained by a Police Assistant Inspector, who said that the appellant was drunk, and when a police Constable was called to assist in arresting the appellant, the appellant used abusive language to the Police, acted in a disorderly manner and resisted being arrested by the Police. He was convicted of being drunk and disorderly for which he was fined $20 and of resisting arrest for which he was fined $10.

HELD: (1) That the fact that the appellant was not medically examined as to drunkenness was not a convincing argument and that drunkenness is a matter of degree which the Magistrates could, as they did, find as a fact.

(2) That the Magistrates in finding that the appellant resisted arrest were correct on the evidence and the appeal would be dismissed.

Authorities referred to:

Kenny "Outlines of Criminal Law" 17th Edition page 60

Dalton's Country Justice (1635) 27

Mr David Kirton, next friend, for the Appellant
The Crown was unrepresented

O'BRIEN QUINN C.J.: -

This is an appeal against the judgment of the Magistrates' Court for the Bairiki Magisterial District given on 2nd October 1978 in which the appellant was found guilty of being drunk and disorderly contrary to section 167(d) of the Penal Code and of resisting arrest contrary to section 117 of the Penal Code (Cap 8) and sentenced to pay a fine of $20 on the first count and a fine of $10 on the second count.

2. The appellant appealed on two grounds but, at the hearing, abandoned the first ground and relied only on the second, namely, that the decision was against the weight of the evidence.

3. The facts as they appear on the Record of the hearing in the Magistrates' Court are that the appellant, a Member of the House of Assembly, was ordered by the Speaker to leave the House, and, while outside the House, he tried to go back in but was restrained by a police Assistant Inspector, who gave evidence that the appellant was drunk, and on a Police Constable having been called to assist in arresting the appellant, the appellant used abusive language to the Police, acted in a disorderly manner, resisted being arrested by police, had to be struck twice with a baton to calm him and eventually, was taken to the Police Station from where he was released some time later.

4. On this evidence the Magistrates' Court found that the appellant was "shouting and forcing himself to go inside the House of Assembly", "that the accused was drunk when he was saying rude words which cannot be spoken by someone who wasn't drunk", "that the accused refused to be arrested according to the evidence given because the policemen had to call for some more people to help and then just put handcuffs on the accused's hands" and "that PW1 and PW2 hit the accused because he was stronger than them and that was the only way to weaken the accused, as the accused refused to be arrested."

5. In arguing the appeal Mr Kirton, for the Appellant, analysed the evidence of "drunkenness" and urged the Court to find that the evidence was equivocal. He argued that the appellant's actions could easily have been the result of an excess of adrenalin his system due to his anger at being excluded from entering the House of Assembly of which he was the elected member for Maiana. He also argued that the slight smell of alcohol could well have emanated from an after-shave lotion or eau de Cologne with an alcoholic base used by the appellant and finally, on this point, contended that the appellant was never medically examined for intoxication or even for the injuries caused by the baton blows.

6. On the conviction for resisting arrest the appellant's representative argued that the appellant did not know or was not aware that he was being arrested. He maintained that the element of "mens rea" was missing as the appellant thought that, as an elected member, he had every right to enter the House of Assembly and was not, in reality, resisting arrest but merely endeavouring to carry out the mandate of his constituents.

7. I have considered the arguments put forward by Mr Kirton on the appellant's behalf and I will deal with each of them in turn.

8. On the question of whether or not the appellant was drunk I have considered the evidence carefully and I find that the Magistrates went into the matter in great detail before finding that the appellant was drunk. The argument put forward that the appellant was not medically examined for drunkenness and that his actions and alcoholic smell could be explained in other ways I do not find to be sound. Drunkenness is a matter of degree and is a matter which the Magistrates had to find as a fact. In Kenny's Outlines of Criminal Law, 17th Edition at page 60 paragraph 42, it is stated: -

"It must finally be noted that the question "Was he drunk?" is often answered too definitely, as if there existed some single standard of sobriety. Intoxication is a question of degree, ranging from mere exhilaration down to unconsciousness. The man may be too drunk to do this act properly, yet sober enough to do some other. Our earliest legal standard of sobriety was over-lenient, regarding a man as not intoxicated unless "the same legs which carry him into the house cannot bring him out again" (Dalton's Country Justice (1635), 27)."

In this case I cannot hold that the Magistrates were wrong in their finding as the evidence was clear that the appellant acted in a manner that was not consonant with sobriety and smelt of alcohol, a smell which, I think I can say, differs very much from the smell of after-shave lotion. Accordingly, the appeal on that ground fails in respect of the first count and medical evidence would not have assisted in any way.

9. With regard to the argument on the second count, again I must say that the Magistrates did consider the matter with care, and came to the conclusion that the appellant resisted being arrested by the two police officers. I have examined the argument put forward on the appellant's behalf that he was not aware that he was being arrested but I find that I cannot accept that argument as, on the Record it is patent that the appellant said words which unequivocally showed that he knew that the purpose of the police in taking him by the hands, later striking him with a baton and later still calling on bystanders to lend assistance was to effect his arrest. I fully appreciate that the appellant was and is the Elected Member for Maiana and that he may have wished to go back into the House of Assembly but, in my view, that was only part of his conduct at the time. He was also shouting and using abusive language and these facts tend only to aggravate rather than mitigate the whole affair. In all these circumstances I cannot but agree with the finding of the Magistrates' Court that the appellant was guilty of resisting arrest as charged and his appeal on this ground must fail also.

10. No appeal against the sentence passed has been filed and even if it had I do not consider that the fine of $20 on the first count and $10 on the second count were, in view of the appellant's previous convictions, in any way excessive.

11. The appeal is, therefore, dismissed and the appellant is ordered to pay his fines of $20 and $10 within three weeks from today or in default go to prison for 6 weeks.

12. In passing, I must say that this appeal was well argued and that the conduct of the Appellant and his representative were exemplary. It would appear that the Appellant was emotionally carried away at the time the offences were committed and that he is not likely to act in such manner again.