IN THE HIGH COURT OF KIRIBATI

CRIMINAL APPEAL NO. 11 OF 2014

		[TEANGIRAOI TABWEWA			APPELLANT
		[
BETWEEN	[AND
		[
		[THE REPUBLIC					RESPONDENT

Before:	The Hon Mr Justice Vincent Zehurikize

2 November 2016

Mr Mantaia Kaongotao for the Appellant
Ms Tewiia Tawita for the Respondent

JUDGMENT

Zehurikize, J:	This appeal proceeded on the basis of the Amended Grounds of Appeal filed on 11 October 2016 in which seven grounds of appeal were set out.  They are:

1.	The Prosecution failed to prove its case beyond reasonable doubt;

2.	The proceeding was biased and not impartial due to the welcoming feast conducted and organized by the lay magistrates, who were witnesses and complainants in the case, to the Single Magistrate prior to the hearing of the matter;

3.	The proceeding was conducted despite the accused’s application for the prosecutor to become  his witness and therefore should step down from prosecuting the matter due to conflict of interests;

4.	The trial was unfair to the accused who was served with a notice of hearing that is less than 13 hours prior to the trial, the accused did not had sufficient time to prepare himself for the case;

5.	The Accused was charged under a contempt of court which was not contrary to section 115(a) of the Penal Code;

6.	There was no contempt of court caused by the Accused;
7.	Failed to give an opportunity for his mitigation after the ruling.

The appeal is against the conviction and sentence by the Single Magistrate sitting at Beru vide Criminal Case No. 174/2014.

At the hearing of the appeal Mr Mantaia Kaongotao appeared for the appellant while Ms Tewiia Tawita represented the respondent.

The first ground of appeal is that the Prosecution failed to prove its case beyond reasonable doubt.  The gist of Mr Kaongotao’s argument is that there is no offence of contempt of court created under s.115(a) of the Penal Code.  That contempt of court is provided for under s.6 of the Magistrates’ Courts Ordinance, but that this section does not create an offence.  Counsel cited the cases of Baebo v Republic (2015) KIHC 75.

I do agree with Counsel that s.6 of the Magistrates’ Court Ordinance does not create an offence nor does it prescribe a punishment therein.  I do believe it is because of this that the prosecution, in the instant case, proceeded under s.115(a) of the Penal Code.  It is therefore not clear why Counsel makes vigorous reference to s.6 of the Ordinance which was not the basis of these proceedings.

It is therefore a misconception on part of Counsel when he argues that there was no order disobeyed by the appellant nor was he warned to stop talking in Court.  That because there was no proof of disobeyed order or warning that the prosecution did not prove its case beyond reasonable doubt.  Surely, those were not the essential elements of the offence that was before the Single Magistrate.

I am inclined to agree with Ms Tawita that what the prosecution had to prove is that the accused was within the premises of the Court in which judicial proceedings were being taken, that he disrespected the Court in speech or manner.

The evidence adduced by the prosecution and the accused’s own evidence clearly proved the above elements of the offence beyond reasonable doubt.  The accused challenged their authority by arguing against the decision of the Court.  He delved into the merits and demerits of their decision.  He was just arrogantly contemptuous.

For the above reasons the first ground of appeal lacks merit and therefore fails.

The second ground of appeal is that the proceedings was biased and not impartial due to the welcoming feast conducted and organized by the lay magistrates, who were witnesses and complainants in the case, to the Single Magistrate prior to the hearing of the matter.

On the outset I must say that this ground has no legal basis because it does not arise from the record of proceedings of the trial Single Magistrate.  As it is always said, an appeal is ordinarily against the record.  The issue of bias based on hosting and entertaining the trial magistrate was not raised before the Single Magistrate.  The appellant did not even make any reference to it in his rather lengthy defence.

These allegations have just been smuggled in these proceedings through an affidavit sworn by the appellant sworn and filed on 
25 October 2016.  This affidavit is designed to act as additional evidence.  But the reception of additional evidence is provided for under s.281(1) of the Criminal Procedure Code as follows:

“281(1)	In dealing with an appeal from a Magistrate’s Court the High Court, if it thinks additional evidence is necessary, may either take such evidence itself or direct it to be taken by a Magistrates’ Court”.

And when evidence is taken pursuance of this section it shall be taken as if it were evidence taken at trial before a Magistrates’ Court.  In other words it can be a basis upon which a ground of appeal can be formulated.

There is nothing on record to show that this Court did direct the appellant to adduce additional evidence by way of affidavit evidence.  It follows therefore that the affidavit filed by the appellant is a nullity and the ground based on such nullity evidence is also a nullity.

However, I wish to note, as Ms Tawita argued, that as a matter of practice the magistrates in the outer islands do always receive and entertain the judicial officers from Tarawa.  They cannot cease to exist as magistrates nor fail and ignore to perform the obvious practical functions simply because they happen to be the complainants in the case.  There was nothing out of the ordinary to smack of bias or likelihood of bias.  The above ground of appeal must also fail.

The third ground is that the proceeding was conducted despite the accused’s application for the prosecutor to become his witness and therefore should step down from prosecuting the matter due to conflict of interest.

This is rather a novel ground.  At the beginning of the trial the accused told Court that he did not want Special Constable Tamuera to be a prosecutor as he was one of his witnesses.  The Court had this to say “this case shall proceed and the court would not object to the accused if he calls prosecutor as his witness”.

I think Court was wrong in this view.  There is no way a person who has conducted the prosecution could later on appear as a defence witness.  Who would then cross examine him?  It would mean that at the time such prosecutor appears as a defence witness the prosecution would have no representation.  Such would be a very absurd state of affairs.

The trial Single Magistrate should have straight away rejected the accused’s request.  It was clear that it was intended to frustrate the proceedings before Court.  The hard truth was that there was only one prosecutor on the island.  He was the one who investigated the case and subsequently preferred the charge against the accused.  The summon containing the charge dated 19 May 2014 signed by the Presiding Magistrate was also signed by the prosecutor who now appeared in Court to prosecute the case.

It is inconceivable that the same prosecutor would now be called as a defence witness.  To me the trick appears to be clear.  There is no way such a prosecutor, who was even part of the Court when the alleged offence was committed and even arrested the accused could now genuinely be a defence witness.

The appellant called a witness who gave almost similar evidence as him.  Their evidence demonstrated how they challenged the decision of the lay Magistrates, criticizing the magistrates for their decision and as it were pointing out the mistakes they believed they had made.

In such circumstances it is difficult to see what the prosecutor would have added to the defence case.  I find that failure to ask the prosecutor to decline prosecuting the case so that he comes for the defence did not in any way cause any miscarriage of justice.  The accused’s request was frivolous and should have been boldly rejected by the Single Magistrate.   For the above reason I do not allow this ground of appeal.

The fourth ground of appeal is that the trial was unfair to the accused who was served with a Notice of Hearing that is less than 13 hours prior to the trial, the accused did not have sufficient time to prepare himself for the case.  

In support of this ground Counsel for the appellant relied, inter alia, on section 78 of the Criminal Procedure Code which provides that notice to attend Court should not be less than 10 days.

But the provisions of s.78 apply to specific offences mentioned under subsection 4 thereof which are:

(a)	Offences under the Traffic Ordinance
(b)	Any offence under the Magistrates’ Ordinance
(c)	Any offence under Part III of the Importation of Animals Ordinance.

The offence in issue in the instant case is none of the above.  Therefore s.78 of the Criminal Procedure Code is not applicable.

Further this ground of appeal is founded on the appellant’s affidavit which I have already found to be a nullity.

It is noteworthy that at the trial the appellant never complained of the short notice.  All he stated was that he did not need legal advice, indicating that he was prepared to proceed.  Nevertheless the case was adjourned to 22 May 2014 giving him another two days.

On 22 May 2014 the prosecution led evidence and the case was again adjourned to 23 May 2014 for defence.  On this date the appellant and his one witness most eloquently stated their side of the story explaining how they reacted to judgment that had been delivered by the Magistrates and hence this offence with which the accused is faced.

I do agree that the notice was short but this did not occasion any miscarriage of justice.  I find no merit in this ground.  It must fail.

The fifth ground is that the accused was charged under a Contempt of Court which was not contrary to section 115(a) of the Penal Code.  It appears according to Counsel that Contempt of Court is only possible under s.6 of the Magistrates' Court Ordinance which he rightly argued that does not create any offence.

As intimated by Counsel the arguments under ground five are similar to those in ground 1 already dealt with.  I must add that Contempt of Court clearly comes out under s.115(a) of Penal Code.  Under that paragraph (a) there is no any other offence disclosed other than Contempt of Court.  It is the reason why under subsection 3 of s.115 it is clarified that the provisions of s.115 shall be deemed to be in addition and not in derogation from the power of the High Court to punish for Contempt of Court.

Under s.6 of the Magistrates' Court Ordinance the magistrates have power, like the High Court, to punish for Contempt of Court.  But in the instant case the magistrate did not wish to take that course.  Instead they preferred to bring proceedings under s.115(a) of the Penal Code so that the matter could be handled by an independent magistrate and not themselves as the aggrieved party.  I think they should be applauded for that.  They were faced with a situation where the offending person was one of their number.  Punishing the appellant summarily would have caused an embarrassment.  I found this ground of appeal merely frivolous and therefore fails.

Ground 6 is that there was no contempt caused by the accused.  In support of this ground Counsel referred to s.6 of the Magistrates' Court Ordinance arguing that it does not create an offence.  I agree that s.6 does not create an offence.  But this case is of an offence contrary to section 115(a) of the Penal Code.  It is not for the appellant’s Counsel to imagine under what legislation the case should have been based.  

These matters have already been considered above especially when dealing with Grounds 1, 5 and 6 of the appeal.  This ground of appeal simply collapses like its related grounds.

Ground 7 is that there was failure to give an opportunity for mitigation.  From the record I note that judgment was delivered on 24 May 2014.  This date was fixed after the appellant had given his defence.  So he must have been present when the case was adjourned to 24 May 2014 for judgment but he absented himself.  By his conduct he denied himself the opportunity to say anything in mitigation.  But the prosecutor indicated that he had no previous conviction.  He was then sentenced to three weeks’ community service.  I have no reason to interfere with this sentence which I do not find excessive.  It was reasonable punishment in the circumstances of this case.

In conclusion I find no merit in this appeal.  It is hereby dismissed.  The lower court file should be sent back to Beru Island Court.  The appellant should henceforth start serving the sentence as imposed by the trial Single Magistrate.

Dated the 4th day of April 2017

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge