Republic of Nauru v Chopane [2016] NRDC 32; Criminal Case 13 of 2015 (24 June 2016)

IN THE DISTRICT COURT OF NAURU
(Criminal Jurisdiction)

CRIMINAL CASE NO. 13 of 2015

BETWEEN:

THE REPUBLIC OF NAURU
Complainant

AND:

ADNAN CHOPANE
Defendant

Mr. Livai Sovau for the Republic
Mr. Sevualoni Valenitabua Public Defender for the defendant

Date of hearing: 6, 7 and 13^th June 2016
Date of Judgment: 24^th June 2016

Ruling on No Case to Answer Submission

INTRODUCTION

1. The defendant is charged with one count of unlawful assembly contrary to section 62 of the Criminal Code 1899.
   
2. Section 62 of the Criminal Code 1899 read:
   

“Any person who takes part in an unlawful assembly is guilty of a misdemeanor, and is liable to imprisonment for one year”^[1]

3. Section 61 of the Criminal Code 1899 read:
   

“when three or more persons, with intent to carry out some common purpose, assemble in such a manner, as to cause persons in the neighborhood to fear on reasonable grounds that persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without reasonable occasion provoke other persons tumultuously to disturb the peace, they are an unlawful assembly.

It is immaterial that the original assembly was lawful if, being assembled; they conduct themselves with a common purpose in such a manner as aforesaid.

An assembly of three or more persons who assemble for the purpose of protecting the house of anyone of them against persons threatening to break and enter the house in order to commit an indictable offence therein is not an unlawful assembly.”^[2]

4. The defendant pleaded not guilty.
   

THE EVIDENCE

5. The evidence presented by the prosecution comprised the following:
   
   1. Agreed facts tendered
      
   2. Statements of witnesses tendered by consent.
      
   3. 10 individuals called to give evidence in court; and
      
   4. 3 CD’s containing videos taken by various individuals marked as Zoe 1, Rachel 1 and Foulton 1.
      

THE AGREED FACTS:

6. The agreed facts are:-
   
   1. Adan Chopane(the accused) was in the assembly which assembled in front of the Beach House at Anibare District on the 27^th February, 2015.
      
   2. The accused participated in the ensuing march on that day from the beach house to the Refugee Lodge at Anabare District.
   100. The accused held a banner during the assembly and the ensuing March.
        
   4. The accused went to the police line in front of the Refugee lodge at Anabare and spoke with a police officer.
      
   5. The accused was later arrested by the police and taken to court; and
      
   6. He was also admitted to bail on the same day
      

STATEMENTS TENDERED BY CONSENT

7. The following statement were tendered by consent
   
   1. Statement by Constable Darryl Namaduk, dated 17.03.15 except the last paragraph of page 1 of that statement.
      
   2. Statement by Sergeant Dan Botelanga, dated 18.03.15, except paragraphs 5 and 6 of page 1 of that statement.
      
   100. Statement of Constable Dogalay Alefio dated 15.01.14
        
   4. Statement of Inspector Czaristed Daniel, undated.
      
   5. Statement of Senior Constable Vicromic Starr dated 27.02.15
      
   6. Statement of Constable Alice Fritz dated 16.03.15
      
   7. Both statements of Zoe Taleka, Community Liason Officer, dated 13.03.15 and 10.04.15 respectively.
      
   8. Both statements of Junior Ollson one undated and the other dated 03.03.15.
      
   9. Statement of Fulton Amram, undated.
      
   10. Both undated statements of Inspector Raynor Tom
       
   11. Statement of Commissioner of Police Corey Caleb
       
   50. Statement by Inspector Sheeva Cook dated 05.04.15
       
   13. Statement by Inspector Jacin Bop, undated
       
   14. Statement by Sergeant Iyo Adam dated 19.05.15
       

WITNESSES CALLED BY PROSECUTION TO GIVE EVIDENCE IN COURT.

8. The prosecution also called 10 witnesses to give evidence in court.
   
9. At the close of the prosecution case Mr. Valenitabua representing the defendant made a no case to answer submission.
   
10. The upshot of the submission by Mr. Valenitabua is that the prosecution has not adduced evidence to prove the element of common purpose that is “with intent to carry out a common purpose namely to walk to the Government Complex in Yarren to stage a protest”^[3]
    

ASSESSMENT OF THE EVIDENCE

11. In the table below I have summarized the issue in terms of which of the witnesses has given evidence regarding the intention to carry out a common purpose namely to walk to the Government Complex in Yarren to stage a protest.
    

Name of Witness	Date Of Statement	Evidence on common purpose or evidence on intention to carry out a common purpose namely to walk to the Government Complex in Yarren to stage a protest.
Junior Olsson	undated	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Junior Olsson	03.03.2015	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Fulton Amram	02.03.2015	Arriving at Anabare Lodge the police formed a line to stop the march where, I joined, as they (refugees) they aggressively tried to break through the line to proceed with the march but the police held them back I left the line to record the incident my mobile phone.[4] [No evidence was elicited from Fulton Amram on where the march was proceeding to]
Fulton Amram	22.05.2015	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Constable Darrly Namaduk	17.3.2015	When refugees arrived, our commanders (Insp Raynor Tom and SP Gregor Garoa), about 5 meters in front of our skirmish line, were advising the refugees to stop but they gathered up and some of the male refugees did encouraged them all to continue on (walk) their peaceful protest to the Nauru Government building.[5]
Sergeant Dan Botelanga	18.03.15	No evidence given about intention to walk to the Government Complex at Yarren to stage a protest.
Probationary Constable Dogaiy Alefaio	15.1.2014	No evidence given about the intention to walk to the Government Complex at Yarren to stage a protest
Acting Inspector Czarist Daniel	undated	No evidence given about the intention to walk to the government Complex at Yarren to stage a protest
Acting Inspector Czarist Daniel	undated	No evidence was given about the intention to walk to the Government Complex at Yarren to stage a protest
Acting Inspector Czarist Daniel	06.04.2014	No evidence was given about the intention to walk to the Government Complex at stage a protest. [Note statement about riot on 27th March 2015[6]. Defendant is charged with and is being tried for incident of unlawful assembly alleged to have happened on 27th February 2015. There appears to be a mistake in the date but it is not for me to assume that there is a mistake in the statement with regard to the date. The prosecution has not called Acting inspector Czarist Daniel to give evidence to explain this. Therefore though tendered by consent, I reject the contents of the statements of Inspector Czarist Daniel for the simple reason that he is talking about an incident that is alleged to have taken place on 27th March 2015.]
Acting Inspector Czarist Daniel	02.04.15	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Senior Constable Vicrome Starr	27.02.15	When the refugees arrived, our commanders (Inspector Raynor Tom and SP Gregor Garoa, about 5 meters in front of our skirmish line, were advising the refugees to stop but they gathered up and some of the male refugees did encouraged them all to continue on (walk) their peaceful protest to the Nauru Government Building[7]
Senior Constable Vicromic Starr	22.05.2015	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest. I wish to add onto my previous statement referred to the Protest in Anibare on the date 27th of April 2015[8] [Again it appears that a mistake may have been made in relation to the date of the offence. This has not been rectified by the prosecution by way of either an additional statement or Senior Constable Vicromic Starr being called to clarify the date of the offence. The defendant is charged with allegedly committing the offence on the 27th February 2015. Not 27th April 2015.I must therefore disregard the other aspect of Senior Constable Vicromic Starr in this statement as they related to him discussing incident of 27th April 2015.]
Constable Alice Fritz	16. 03.2015	When the refugees arrived, our commanders (Insp Raynor Tom and SP Gregar Garoa),about 5 meters in front of our skirmish line, were advising the refugees to stop but they gathered up and some of the male refugees did encouraged them all to continue on (walk) their peaceful protest to the Nauru Government building.[9]
Commissioner of Police Corey Caleb	undated	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Inspector Sheeva Cook	5.4.15	Received information from disturbed informants by particular refugee employed by Rainbow that he had warned them to keep away from particulars arears that they will destroy them to get the attention from Nauru and Australia.[10] I started off questioning Mr. Ali confirming it protest will act on the said 27th 2015 at 3:00pm, which he replied yes and the entire settlements will be attending at the beach house with the total number of 400 and he will not participate in the protest unless wife partakes then he will also join to support wife.[11] [Mr. Ali has not made any statement or was not called to give evidence. Therefore the statement of Inspector Sheeva Cook regarding her interview of Mr. Ali and the answers said to have been given to her by Mr. Ali are ruled as inadmissible hearsay evidence and must be rejected]
Inspector Jachim Bop	undated	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest .[Relates to the arrest of the defendant with the others and the incidents of the 4th March 2015 and is therefore not relevant to the current proceedings. I disregard the contents of the statement.]
Statement of Inspector Raynor Tom	22.05.15	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Inspector Raynor Tom	undated	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Inspector Raynor Tom	undated	“On the 27th February 2015 at around 15:00hrs, I received a call from the Director of Police Corey Caleb to attend a gathering of people at the Connect Beach House in Anibare. He had informed me that there was intel that the group of people were walking to the Government House to stage their demonstrations”[12] There is no mention in Commissioner of Police Corey Caleb’s statement of having received intel information to the effect that the protestors would be marching to the Government Complex to stage their demonstrations.” [No additional statement to this effect was ever obtained from the Commissioner of Police nor was the Commissioner of Police called to give further evidence in court to this effect. I must therefore reject this aspect of Inspector Raynor Tom’s evidence on the basis that itis hearsay evidence and is inadmissible despite being tendered by consent.]
Statement of Sergeant Iyo Adam	19.05.2015	Statement relates to execution of warrants of arrests issued by the District Court on the 4th March 2016. Therefore the evidence as contained in statement of Sergeant Iyo Adam is not relevant to the issue to be determined in the trial for this matter.
Zoe Taleka	10.4.15	“When they all gathered in front of the Connect building and then they immediately started their protest “off shore shutdown, freedom, No more Nauru Justice” those were the words of chanting that I heard from refugees.”[13]
Zoe Taleka	20.5.2015	No evidence was given about intention to walk to the Government Complex at Yarren to stage a protest
Zoe Taleka	13.4.2015	“When they all gathered in front of the Connect building and they immediately started their protest “offshore shut down, freedom, no more Nauru, justice” those were the words of chanting from the refugees.”[14]

EVIDENCE OF WITNESSES CALLED BY THE PROSECUTION TO GIVE EVIDENCE IN COURT

12. In the table below I have summarized the issue in terms of which of the witnesses called to give evidence in court, had given evidence regarding the intention to carry out a common purpose namely to walk to the Government Complex in Yarren to stage a protest.
    

Name of Witness	Date gave evidence	Evidence on purpose or common purpose of assembly
Sergeant Decima Deireregea	6.06.2016	No evidence on purpose or intention to walk to the Government Complex at Yarren
Sergeant Rory Detageouwa	6.06.2016	No evidence was given regarding intention to walk to parliament
Constable Jayjay Bop	6.06.2015	Going in clockwise direction to the government building. As they were walking they were chanting yelling freedom and justice offshore shut down
Constable Marvin Junior Tokaibure	06.06.16	No evidence was given on intention to walk to the Government complex at Yarren to stage a protest.
Constable Sareima Aremwa	06.06.2016	No evidence was given on intention to walk to Government Complex at Yarren to stage a protest.
Constable Lady Jane Hilo	7.06.2016	No evidence was given on intention to walk to the Government complex at Yarren to stage a protest.
Sese Kiki	7.06.2016	No evidence given on intention to walk to the Government complex at Yarren to stage a protest
Ms. Rachel Gadaroa	7.06.2016	No evidence of intention to walk to the Government complex at Yarren to stage a protest.
Constable Francine Kepae	7.06.2016	No evidence of intention to walk to the Government complex at Yarren to stage a protest.
Mr. Goodwin Karoa	13.6.2016	No evidence was given of intention to walk to the Government complex at Yarren to stage a protest.

THE VIDEOS TAKEN OF THE EVENTS OF 27^TH FEBRUARY 2016

13. Videos taken of the incident were tendered by consent. These are marked as exhibit 1, exhibit 2 and exhibit 3.
    

ASSESSMENT OF THE PROSECUTION CASE

14. Four witnesses have given evidence that:
    
    1. When the refugees arrived, our commanders (Inspector Raynor Tom and SP Gregor Garoa, about 5 meters in front of our skirmish line, were advising the refugees to stop but they gathered up and some of the male refugees did encouraged them all to continue on (walk) their peaceful protest to the Nauru Government Building^[15]
       
    2. When the refugees arrived, our commanders (Insp Raynor Tom and SP Gregar Garoa),about 5 meters in front of our skirmish line, were advising the refugees to stop but they gathered up and some of the male refugees did encouraged them all to continue on (walk) their peaceful protest to the Nauru Government building.^[16]
       
    3. When refugees arrived, our commanders (Insp Raynor Tom and SP Gregor Garoa), about 5 meters in front of our skirmish line, were advising the refugees to stop but they gathered up and some of the male refugees did encouraged them all to continue on (walk) their peaceful protest to the Nauru Government building.^[17]
       
    4. Going in clockwise direction to the government building. As they were walking they were chanting yelling freedom and justice offshore shut down^[18]
       
15. None of the evidence as summarized in paragraph 14(i)(ii)(iii) and (iv) of this ruling was challenged by the defence by way of cross-examination or during cross-examination. It must therefore be taken to have been admitted by the defence. I reject the submission by Mr. Valenitabua that the element of common purpose or intention to march to the Government Complex at Yarren to stage a protest is not made out at this stage of the proceedings.
    
16. I find that the defendant has a case to answer.
    

Dated this 24^th day of June 2016

Emma Garo
Resident Magistrate

---

^[1] Section 62 of the Criminal Code 1899
^[2] Section 62 of the Criminal Code 1899
^[3] Particulars of the offence charged dated 3^rd March 2015
^[4] Paragraph 2 line 9 statement of Fulton Amram dated 2^nd March 2015
^[5] Paragraph 8 statement of Constable Darrly Namaduk dated 17^th March 2015
^[6] Paragraph 3 of statement, page 1 of statement of Acting Inspector Czarist Daniel dated 06.04.15
^[7] Paragraph 8 page 1 of statement of Senior Constable Vicromic Star dated 27^th February 2015

^[8] Paragraph 4 page 1 of statement of Senior Constable Vicromic Starr dated 22^nd May 2015
^[9] Paragraph 8 page 1 of statement of Constable Alice Fritz dated 16^th March 2016
^[10] Paragraph 4 of page 1 of statement of Inspector Sheeva Cook dated 4^th April 2015
^[11] Paragraph 1 page 2 of statement of Inspector Sheeva Cook dated 4^th April 2015
^[12] Paragraph 3 of page 1 of statement of Inspector Raynor Tom undated.
^[13] Paragraph 8 of statement of Zoe Taleka dated 10^th April 2015
^[14] Paragraph 8 of statement of Zoe Taleka dated 13^th April 2015
^[15] Paragraph 8 page 1 of statement of Senior Constable Vicromic Star dated 27^th February 2015

^[16] Paragraph 8 page 1 of statement of Constable Alice Fritz dated 16^th March 2016
^[17] Paragraph 8 statement of Constable Darrly Namaduk dated 17^th March 2015
^[18] Evidence of Constable Jayjay Bop