IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 31 OF 2017

		[THE REPUBLIC					PROSECUTOR
		[
BETWEEN	[AND
		[
		[KATAWATI IOTEBWA				ACCUSED

Before:	The Hon Chief Justice Sir John Muria

21 November 2018

Ms Pauline Beiatau for the Prosecutor
Mr Reiati Temaua for the Accused

RULING

Muria, CJ:	This is an application by the prosecution to amend the charge against the accused in this case.  The accused has been charged with attempted rape contrary to section 130 of the Penal Code.  The accused pleaded not guilty.  The prosecution called its three prosecution witnesses and closed its case.  The defendant seeks to make a no case submission and the case was adjourned for the no case to answer submissions.

2.	The case was fixed for the no case to answer submission but the prosecution now seeks to amend the charge against the accused.  The suggested amendment is to charge the accused with indecent assault instead of attempted rape.  The prosecution relies on section 241(2) of the Criminal Procedure Code to support the application for amendment.

3.	Section 241(2) of the Criminal Procedure Code is in the following terms:

“(2)	Where, before a trial upon information or at any stage of such trial, it appears to the court that the information is defective, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice; and all such amendments shall be made upon such terms as to the court shall seem just”.

4.	Section 241(2) empowers the Court to order amendment to a charge, if it appears to the Court that the information is defective.  Ms Beiatau submits that we are still at the trial stage and as such the Court can still order the amendment as sought.  Counsel further submits that no prejudice will be caused to the accused if the amendment is made.

5.	True, we are still at the trial stage yet.  As such the power under section 241(2) can still be exercised by the Court.  In fact, trial or hearing does not end, until the judgment is pronounced.  See Higgon –v- O’Dea [1962} WAR 140.  See also Jones –v- Police [1998] 1 NZLR 447.  Both cases were referred to in the Samoan case Police –v- Talataina [2017] WSSC 76 cited by Counsel for the prosecution.

6.	The case of Police –v- Talataina (above) referred to by Ms Beiatau is concerned with section 55 of the Samoa Criminal Procedure Act (CPA) which gives the Court the discretion to amend charges in any way at any time during trial.  That includes amending particulars; removing, adding or substituting charges or amending the names of the accused.

7.	The case of State –v- K.R.A.K referred to by Counsel for the accused is also helpful.  That case makes the point that the longer the interval between the arrangement and amendment the more likely that injustice will be caused, adopting what the Court has said in Johal [1973] QB 475.

8.	In our present case, section 241(2) of the Criminal Procedure Code is concerned with the power of the Court to order amendments where the information or charge is defective.  I take this also to include a situation where there is an error in the charge or information.  In such a case, the Court should order the defect or error to be corrected through amendment to the information or charge.

9.	There is a further consideration that the Court will bear in mind when ordering the amendment to be made.  I consider this to be at the heart of the exercise of the Court’s power under section 241(2) of the Criminal Procedure Code, that is, the amendment ought not to be granted if injustice will be caused to the accused person.  In other words, if irremedial prejudice to the accused will be occasioned by the proposed amendment, then the Court will not permit the amendment to be made under section 241(2).

10.	It is not suggested that the Court cannot allow amendments to information or charges.  The Court is obliged to ensure that those who commit crimes and are charged are properly tried according to law.  The law also provides that the procedure by which accused is dealt with is just and fair.  If the procedure involves amendment to information or charges, it must be done properly according to law.  One such way of properly bringing charge before the Court is to ensure that if amendment is required to an information, it must be done at or before the commencement of the trial as provided in section 241(1 of the Criminal Procedure Code.

11.	The prosecution stated that the proposed amendment will not prejudice the accused on two basis.  First, there will be no further evidence to be brought by the prosecution.  The evidence adduced by the prosecution in respect of the original charges remains the same.  Secondly, the prosecution stated that the proposed amendment is a lesser offence to the original one.  Hence it is suggested the amendment will be to the benefit of the accused rather than detrimental.

12.	The burden is on the prosecution to establish that the proposed amendment would not prejudice the accused.  It is not for the accused to demonstrate that his case will remain the same, since the prosecution will not be calling any further evidence other than those that have already been called.  The prosecution must establish the absence of prejudice to the accused to the satisfaction of the Court.

13.	I feel it is important to note that the amendment proposed by the prosecution in this case is plainly not the type of amendment envisaged in section 241(2) of the Criminal Procedure Code.  It is not a defect or an error in the information.  What the prosecution is seeking to do is to substitute the original charge and not merely an amendment.  That is not the intention of section 241(2).  It is therefore wrong to call it an amendment within the meaning of section 241(2) of the Criminal Procedure Code.

14.	To say, as submitted by Counsel for the prosecution, that the defence case will not be prejudiced by the amendment because the prosecution will not be calling any new evidence beside that which had already been adduced, is to assume that the accused’s defence or case would remain the same had the prosecution brought the amended information.  In my view it would not be reasonable to expect the accused to show that his defence or case would have remained the same.  Principally, this is because the original offence to which the accused had pleaded not guilty is different to the new charge now proposed.  The essential ingredients of the original charge of attempted rape are different from those of the proposed charge of indecent assault, albeit a lesser charge.  An acquittal on the charge of attempted rape, if that occurs, can never give rise to a conviction on the alternate charge of indecent assault, based on the same evidence.

15.	Again the fact that the proposed new charge is lesser one to that originally charged, does alleviate the prosecution burden of showing that the alteration of the information or charge would not prejudice the accused.  In the present case, I find that the prosecution has failed to show that the accused would not have conducted his defence case differently if he had originally been charged with the now proposed charge of indecent assault.

16.	I therefore find that the prosecution has failed to establish that the accused would not be prejudiced by the amendment sought.  Consequently the proposed amendment is refused.  Case to proceed on the original charge from where it was left off. 

Dated the 23rd day of November 2018

SIR JOHN MURIA
Chief Justice