In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 43 of 2005

The Republic

Vs

Linda Ueanteang
Ueanteang Nakangeri

For the Republic: Ms Pauline Beiatau
For the 1st Accused: Ms Taoing Taoaba
For the 2nd Accused: Mr Aomoro Amten

Date of Hearing: 8 February 2006

JUDGMENT

Linda Ueanteang and Ueanteang Nakangeri have been charged with fraudulent conversion:-

On or about the 19th May 2000 at Betio in the Republic of Kiribati, Linda Ueanteang and Ueanteang Nakangeri were knowingly concerned in the fraudulent evasion of customs duties totalling $4,503.15.

The indictments were filed on 1 November 2005: over 5½ years after the date alleged.

On 23 December 2005 the Court was told the defendants would plead not guilty and Wednesday 8 February 2006 was set for the trial. On 11 January Mr Amten on behalf of Ueanteang applied for a stay of proceedings. Before the defendants were arraigned on Wednesday I heard the application (which Linda, by then represented by Ms Taoaba, supported).

Both Mr Amten and Ms Beiatau made written submissions. In the course of discussing the submissions with counsel I had a good deal of evidence from the Bar table. It came from both Mr Amten and Ms Beiatau and was without objection. I accept as accurate what I was told. That information together with Ueanteang’s affidavit in support of the application is a sufficient outline of the facts to allow a decision.

The defendants are merchants and in 2000 imported goods into Kiribati. Customs duties were payable. They say they paid what was owing but had four months later lost or misplaced the receipt from Customs. Still they had the other document given them when they paid duty, the Bill of Entry for the goods. The Bill of Entry has on it a receipt number. The number is false so the duplicate receipt in Customs records has not been found. Suspicion of some wrongdoing originally fell on a Customs officer. During submissions I made this note:-

Bill of entry shews an incorrect receipt number. The Bill of Entry was written out by a Customs officer. If the receipt number had been valid/correct then a receipt duplicate would have been located in Customs records. There has been wrongdoing on the part of someone in Customs.

Ms Beiatau acknowledged the accuracy of my note.

The Police interviewed Ueanteang in September 2000:-

The police informed me that they wanted to ask me some questions as a complaint against an employee of the Customs had been lodged with them. (Paragraph 3 of Ueanteang’s affidavit in support of application).

Ueanteang thought he was to be a witness. He was not cautioned before he gave his statement. He did not realise the importance of the receipt or he would have made a diligent search for it in the hope of finding it even after four months. Neither he nor his wife heard any more about the matter until they were served with the indictment.

During submissions I made another note:-

The applicants were interviewed to be witnesses against the Customs officers: no suggestion to them that they would be charged. No caution administered. The first they knew was when they were served. Not intended to use statements. Decision not to charge the Customs officer made in November 2005.

Again Ms Beiatau agreed to the accuracy of my note.

The Republic has made the file available to the defendants and their lawyers. In paragraph 9 of his affidavit Ueanteang sets out from information in the file the chronology of the Police investigation and references to the Attorney General’s office. It shews very bad delay which had no excuse. Ms Beiatau’s written submissions:-

I admitted that this case had taken 5½ years before proceedings to the High Court commenced and this delay was caused by both the police and the office of the Attorney General.

Ms Beiatau submitted that the case was complex. It should be possible even in the most complex case (and from what I have been told of the facts this is not the most complex) to complete an investigation and lay charges within a few months, six months at the limit.

Ms Beiatau reminded me of section 128 of the Customs Act:-

128.	Prosecutions and other proceedings arising from an offence under the customs laws may be commenced at any time within 7 years after the date of the offence.

Ms Beiatau argued that there are still 15 months to go before a prosecution would be statute barred. 

The aim of section 128 is to allow a very late prosecution when for example the offence itself has remained concealed for a long time, is discovered only after a number of years. The section should not be taken to affect general principles relating to abuse for process. There is no time limit at all on prosecution of most crimes.

Mr Amten referred to a number of authorities, perhaps the most helpful being Regina v Horseferry Road Magistrates’ Court, Ex parte Bennett ((1994) 2 AC 42 but most confusingly the usual reference and the pagination in the Reports is (1994) 1 AC 42). Lord Lowry in a speech concurring with the majority set out the principles:-

…. I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely “pour encourager les autres” (at 74-75).

Having considered the application and the arguments of counsel I have come to the conclusion that the prosecution of these two people “offends the court’s sense of justice and propriety”. They were given no hint of prosecution for any offence: had no idea that they might ever need that receipt – if they had, a diligent search may have turned it up: over five years went by during which they heard nothing: it is now nearly six years ago and recollection of events will have progressively dimmed.

I do not come to this conclusion to “express the Court’s disapproval of official conduct” but because it simply would not be fair to the defendants to allow the prosecutions to proceed.

The application is granted: the prosecutions of both Linda Ueanteang and Ueanteang Nakangeri are stayed.

Dated the 10th day of February 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice