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Teboo v Attorney-General - decision [2004] KIHC 52; Civil Case 12 of 2003 (24 March 2004)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Case 12 of 2003

Between:

BAKOA TEBOO
TAWANGA KABOTOA
Plaintiffs

And:

ATTORNEY GENERAL IN RESPECT OF
COMMISSIONER OF POLICE
Defendant

For the Plaintiffs: Ms Jacqueline Huston
For the Defendants: Mr Daniel Gorman

Date of Hearing: 23 March 2004

DECISION ON PRELIMINARY POINT

Counsel for the parties have asked me to decide a preliminary point. I set out what I know of the facts.

The two plaintiffs and another (who has died) were arrested on 22^nd May 2000 in connection with the death, on Tab South, of Kaoma Kris. They were, as they should have been, brought before a magistrate on the following day. Mr Gorman at my request gave me the "Warrant to Remand Person Charged". The warrant is to commit the two plaintiffs and Tabeang (deceased) to prison on TabNorth. The magistrate issuing the warrant recites that the three men "(have) been brought before me under arrest to answer a charge laid against them of unlawful wounding contrary to section 223 of the Penal Code)".

In July the first plaintiff, Bakoa, was transferred to the Bairiki prison. On 20^th July he was charged with murder. He remained in custody until 4^th August when he was released on bail. He was due to be tried on 20^th June 2001 but the Republic did not proceed with the charge of murder, substituting the charge of assault occasioning actual bodily harm. I found him not guilty on 25^th July (HCCrC 14 of 2000).

The second plaintiff, Tawanga, was remanded in custody and was in custody until 13^th June when he was released on bail, presumably still on TabSouth. No other proceedings have been taken against him. Technically I suppose he is still on bail.

Those facts come from the chronology, part of the Defendant's submissions.

Last week Ms Huston, for the plaintiffs, filed an Amended Statement of Claim. To the original Statement of Claim has been added a paragraph:-

9. The Plaintiffs plead and rely on the Criminal Procedure Code, section 154(2) as amended from time to time.
   

The significance and effect of section 154(2) is the preliminary point for decision.

Originally section 154 of the Criminal Procedure Code read:-

If on the dismissal of any case any court shall be of opinion that the charge was frivolous or vexatious, such court may order the complainant to pay to the accused person a reasonable sum as compensation for the trouble and expense to which such person may have been put by reason of such charge in addition to his costs.

Section 154 was amended in 1980. Although the amendment does not say so, the original section became subsection 1. Added to the section:-

(2) When a case is dismissed other than under the provisions of S.38 of the Penal Code or an accused is acquitted, the court may order that the Republic pay to the accused person a reasonable sum for the trouble and expenses to which –

• (a) he or his family and dependants, or any of them; or
  
• (b) any person acting on his behalf or on behalf of his family and dependants, or any of them, or acting reasonably in his or their interests,
  

has been put by reason of the charge.

(3) The provisions of subsections (1) and (2) apply to the withdrawal of a charge or the entry of a nolle prosequi without the substitution of a new charge in the same way that they apply to the dismissal of a case.

Subsections (2) and (3) deal with situations distinct from those contemplated by subsection (1). It would have better drafting if subsections (2) and (3) were in a separate section. That they are not has no effect on interpretation.

Mr Gorman, for the defendant, was keen that I should use, as an aid to interpretation, the second reading speech in 1980 on the Introduction of the bill to amend section 154. I resisted, recollecting that in Australia resort by the courts to parliamentary debates as an aid to interpretation only lately has been allowed by statute. The courts have as a rule, fought shy of using such an unreliable aid to interpretation as parliamentary speeches. I have since confirmed my recollection by reference to Pearce's Statutory Interpretation in Australia (unfortunately we have in the High Court library only the second edition) chapter 4 paragraphs [76] to [78].

Ms Huston, for the plaintiffs raised a possible difficulty for her clients – whether a claim pursuant to section 154 must be made immediately in the court which has dealt with the matter or whether it can be made later in separate proceedings.

As a matter of convenience the claim should be dealt with by the original court. It has the facts (certainly in relation to subsection (1)) and is in the best position to decide. On the other hand – the second plaintiff's case is a good example – if a person has not been brought to trial before a court, he or she has had no court in which to claim.

The second plaintiff's situation is decisive to my concluding that a claim, at least a claim brought under subsection (2), can be heard by a court other than the court which has disposed of proceedings.

I can see no reason why the first plaintiff cannot make a claim for compensation.

The second plaintiff is in a different situation to the first plaintiff. He has never come again before a court. Proceedings against him seem merely to have been forgotten.

Mr Gorman argued that the second plaintiff had never been charged: no charge against him had ever been withdrawn nor a nolle prosequi entered: therefore he had no claim. Mr Gorman held to this argument despite my pointing out the wording in the Warrant, the document which he himself produced – "a charge laid against him (of unlawful wounding)". Those words are plain: both plaintiffs had been charged with unlawful wounding. I regard the failure of the authorities (I use that word loosely to include both the police and the Attorney General) to go on with the charge after nearly four years as tantamount to its withdrawal. The second plaintiff may maintain his action.

I point out two things. First any remedy is discretionary. The court will have to be persuaded to exercise its discretion in favour of the plaintiffs. Secondly I remind the plaintiffs of section 3 of the 1980 amending Act. Whether Parliament has made an appropriation to satisfy any order under section 154 I do not know.

Dated the 24^th day of March 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice