[1979] KILR 32

HIGH COURT OF THE GILBERT ISLANDS

Criminal Revision Case No 3 of 1979

REGINA

v

TEBAKARERE UNIMEA

(O'BRIEN QUINN C.J.)

Betio: 20th February 1979

Revision order - section 81(1) of Magistrates' Courts Ordinance 1977 - accused charged under section 115(1) (d) of Penal Code (Cap 8) - convicted and sentenced - conviction and sentence set aside - section 115(1) (d) did not apply to the facts - perjury contrary to section 96 of Cap 8 or giving false information to a public officer contrary to section 122 of Cap 8 should have been charged - accused ordered to be acquitted subject to her being properly charged.

The facts appear sufficiently in the judgment.

ORDERED: That the accused should not have been charged under section 115(1) (d) of the Penal Code (Cap 8) as that section deals with refusing to answer a question or to produce a document when sworn in Court but that she should have been charged with perjury contrary to section 96, or giving false information on to a public officer contrary to section 122, of the Penal Code (Cap 8) and that she should be acquitted and released subject to her being properly charged should the Attorney-General so advise.

O'BRIEN QUINN C.J.:-

This case arose out of the fact that during a High Court trial in which the husband of the accused was charged with Rape the evidence given by the present accused was not in accordance with the statement which she had made to the Police, and that during the case I warned her that she may find herself charged with Perjury or with giving false information to the Police. The case was R v Tetitei Nauteute H.C. Cr. Case No. 20 of 1978.

2. The Police, after this accused's husband had been discharged and acquitted on the Rape charge, charged this accused with an offence contrary to section 115(1) (d) of the Penal Code (Cap 8).

3. The accused pleaded not guilty and after the Magistrates' Court at Nikunau had heard evidence on 6th December 1978 it convicted the accused and sentenced her to 3 months' imprisonment.

4. I fail to understand why the accused was charged under section 115(1) (d) of Cap 8, as that section bears no reference to giving perjured evidence in Court or to giving false information to the Police. In fact the evidence given before the Magistrates' Court did not, in any way support a charge under section 115(1) (d) of Cap 8 which deals with refusing to answer a question or to produce a document when sworn in Court.

5. The accused should have been charged with either Perjury contrary to section 96 of Cap 8 or, if the statement which she made to the Police was false, with giving false information to a public official contrary to section 122 of Cap 8.

6. I must, therefore, quash the conviction on section 115(1) (d) of Cap 8 but I leave it open to the Crown whether or not to proceed on one of the other charges which I have mentioned, bearing in mind that the statement made by the accused to the Police was made on 14th March 1977, almost two years ago, and that the accused has by now served almost 12 weeks of her 3 months' sentence of imprisonment. I would advise the Police to seek the advice of the Attorney-General before proceeding further with this matter.

7. The accused is, therefore, released from prison and is acquitted of the charge under section 115(1) (d) of Cap 8 but may be charged with another offence.