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District Court of Nauru |
IN THE DISTRICT COURT OF NAURU
AT YAREN
CRIMINAL JURISDICTION
Criminal Case No. 14 of 2024
BETWEEN: THE REPUBLIC OF NAURU
APPLICANT
AND: JJSON ITSIMAERA
1st Defendant
AND: A.D.
2nd Defendant
BEFORE: Resident Magistrate Mr. Vinay Sharma
DATE OF HEARING: 30 September and 1, 2 & 21 October 2025
DATE OF RULING: 7 November 2025
APPEARANCE:
APPLICANT: M Suifa’asia
1st DEFENDANT: R Tom
2nd DEFENDANT: S Hazelman
RULING
[VOIR DIRE]
INTRODUCTION
WAS THE SEARCH OF THE MOTORBIKE LAWFUL?
WHAT IS THE APPLICABLE LAW IN RELATION TO THE ADMISSIBILITY OF UNLAWFULLY OR IMPROPERLY OBTAINED EVIDENCE?
English laws adopted
(1) Subject to the provisions of subsection (4) and of Sections 3, 5 and 6, the common law and the statutes of general application, including all rules, regulations and orders of general application made thereunder, which were in force in England on the 31st day of January, 1968, are hereby adopted as laws of the Republic.
(4) The principles and rules of the common law and equity adopted by this Section may from time to time in their application to the Republic be altered and adapted by the courts to take account of the circumstances of the Republic, and of any changes of those circumstances, and of any alterations or adaptations of those principles and rules which may have taken place in England after the 31st day of January, 1968, whether before
or after the commencement of this Act, but:
(a) nothing in this subsection shall be taken as requiring that any principle or rule of the common law or equity adopted by this Section be altered or adapted in its application to the Republic; and
(b) a principle or rule of the common law or equity adopted by this Section shall not be altered or adapted in its application to the Republic unless the court which makes the alteration or adaptation is satisfied that the principle or rule so altered or adapted will suit better the circumstances of the Republic than does the principle or rule without that alteration or adaptation.
In the English cases, the evidence under consideration is admissible in law (whether illegally obtained or not) and the exercise of discretion is called for in order to decide whether, even though admissible, it should be excluded in fairness to the accused. The same end is reached in both jurisdictions though by a slightly different route. There is a passage in the opinion of the Lord Justice General (Lord Cooper) in Lawrie v Muir which points to some of the difficulties of the question which is involved. He said (1950 SC (J) at pp 26, 27):
“From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come in conflict—(a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.”
He proceeded (1950 SC (J) at p 27:
“Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular the case may bring into place the discretionary principle of fairness to the accused which has been so fully developed in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime. That principle would obviously require consideration in any case in which the departure from the strict procedure had been adopted deliberately with a view to securing the admission of evidence obtained by an unfair trick ... On the other hand, to take an extreme instance figured in argument, it would usually be wrong to exclude some highly incriminating production in a murder trial merely because it was found by a police officer in the course of a search authorised for a different purpose or before a proper warrant had been obtained.”
Nevertheless it has to be recognised that there is an unbroken series of dicta in judgments of appellate courts to the effect that there is a judicial discretion to exclude admissible evidence which has been 'obtained' unfairly or by trickery or oppressively, although except in R v Payne there never has been a case in which those courts have come across conduct so unfair, so tricky or so oppressive as to justify them in holding that the discretion ought to have been exercised in favour of exclusion. In every one of the cases to which your Lordships have been referred where such dicta appear, the source from which the evidence sought to be excluded had been obtained has been the defendant himself or (in some of the search cases) premises occupied by him; and the dicta can be traced to a common ancestor in Lord Goddard CJ's statement in Kuruma Son of Kaniu v R ([1955] 1 All ER 236 at 239, [1955] AC 197 at 204) which I have already cited. That statement was not, in my view, ever intended to acknowledge the existence of any wider discretion than to exclude (1) admissible evidence which would probably have a prejudicial influence on the minds of the jury that would be out of proportion to its true evidential value and (2) evidence tantamount to a self-incriminatory admission which was obtained from the defendant, after the offence had been committed, by means which would justify a judge in excluding an actual confession which had the like self-incriminating effect. As a matter of language, although not as a matter of application, the subsequent dicta go much further than this; but in so far as they do so they have never yet been considered by this House.
My Lords, I propose to exclude, as the certified question does, detailed consideration of the role of the trial judge in relation to confessions and evidence obtained from the defendant after commission of the offence that is tantamount to a confession. It has a long history dating back to the days before the existence of a disciplined police force, when a prisoner on a charge of felony could not be represented by counsel and was not entitled to give evidence in his own defence either to deny that he had made the confession, which was generally oral, or to deny that its contents were true. The underlying rationale of this branch of the criminal law, though it may originally have been based on ensuring the reliability of confessions is, in my view, now to be found in the maxim, nemo debet prodere se ipsum, no one can be required to be his own betrayer, or in its popular English mistranslation 'the right to silence'. That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.
Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution has been obtained but with how it is used by the prosecution at the trial.
A fair trial according to law involves, in the case of a trial on indictment, that it should take place before a judge and a jury; that the case against the accused should be proved to the satisfaction of the jury beyond all reasonable doubt on evidence that is admissible in law; and, as a corollary to this, that there should be excluded from the jury information about the accused which is likely to have an influence on their minds prejudicial to the accused which is out of proportion to the true probative value of admissible evidence conveying that information. If these conditions are fulfilled and the jury receive correct instructions from the judge as to the law applicable to the case, the requirement that the accused should have a fair trial according to law is, in my view, satisfied; for the fairness of a trial according to law is not all one-sided: it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial function to exclude it for this reason. If your Lordships so hold you will be reverting to the law as it was laid down by Lord Moulton in R v Christie, Lord du Parcq in Noor Mohamed v R and Viscount Simon in Harris v Director of Public Prosecutions before the growth of what I believe to have been a misunderstanding of Lord Goddard CJ's dictum in Kuruma Son of Kaniu v R ([1955] 1 All ER 236 at 239, [1955] AC 197 at 204).
I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. (1) A trial judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained...
78 Exclusion of unfair evidence.
(1)In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2)Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
34. In the decision of the House of Lords in R v Sang [1979] UKHL 3; [1980] AC 402, Lord Diplock regarded that passage in Kuruma as referring to a situation which was "clearly analogous to a confession which the defendant has been unfairly induced to make": see pp. 434-435.
35. Later in his speech, at p. 436, Lord Diplock continued:
"Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law. It is no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them. If it was obtained illegally there will be a remedy in civil law; if it was obtained legally but in breach of the rules of conduct for the police, this is a matter for the appropriate disciplinary authority to deal with. What the judge at the trial is concerned with is not how the evidence sought to be adduced by the prosecution had been obtained, but with how it is used by the prosecution at the trial."
36. Later, at p. 437, Lord Diplock continued:
"... The fairness of a trial according to law is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted. However much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt it is no part of his judicial function to exclude it for this reason."
37. There were similar statements in the speeches of the other members of the House of Lords.
38. The law as stated by the House of Lords in Sang was modified by Parliament in enacting section 78 of PACE. However, the general principle remains good that there is no automatic rule requiring the exclusion of evidence because of the manner in which it was obtained.
39. That general approach is also consistent with the obligations of the United Kingdom under the European Convention on Human Rights ("ECHR").
40. There is no principle of law under the ECHR that unlawfully obtained evidence is not admissible: see the decisions of the European Court of Human Rights in Schenk v Switzerland (1988) 13 EHRR 242, para. 46; and the House of Lords in R v Khan (Sultan) [1996] UKHL 14; [1997] AC 558.
41. In El Haski v Belgium (2013) 56 EHRR 31, the European Court of Human Rights confirmed its longstanding jurisprudence to the effect that it is not the role of that Court to determine, as a matter of principle, whether particular types of evidence (for example unlawfully obtained evidence) may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where violation of another Convention right is concerned (for example the right to respect for private life and correspondence in Article 8) the nature of the violation found: see para. 82 of the judgment. Nevertheless, at para. 85, the Court went on to state that particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3 (which prohibits torture, and inhuman or degrading treatment, and which is absolute since it permits of no exceptions and cannot be derogated from under Article 15 even in time of war or public emergency). The Court stated that the use in criminal proceedings of statements obtained as a result of a person's treatment in breach of Article 3 (irrespective of the classification of that treatment as torture, inhuman or degrading treatment) "makes the proceedings as a whole automatically unfair and in breach of Article 6." It continued:
"The same applies to the use of material [in the sense of real] evidence obtained directly as a result of torture; the use of such evidence obtained by treatment which is contrary to Article 3 but falls short of torture is not, on the other hand, contrary to Article 6 unless it is shown that the breach of Article 3 had a bearing on the outcome of the proceedings, that is, had an impact on the conviction or sentence."
42. The function of a judge under section 78 of PACE is often described as being the exercise of a "discretion". That is how it was described in the present case. This is consistent with the use of the word "may" in section 78 itself. However, as Auld LJ observed in R v Chalkley [1998] QC 848, at p. 874, strictly speaking section 78(1) does not involve a discretion because, if a court decided that admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that it ought not to admit it, it cannot logically exercise a discretion to admit it. Indeed, this position can only have been reinforced by the coming into force of the Human Rights Act 1998 ("HRA").
43. The right to a fair trial is one of the rights enshrined in Article 6 of the ECHR, set out in Sch. 1 to the HRA; and section 6(1) of the HRA makes it unlawful for any public authority to act in a way which is incompatible with a Convention right. A public authority includes not only the police, the prosecution but also a court: see section 6(3)(a). In circumstances therefore where there would be an unfair trial that is unlawful under section 6(1) of the HRA. To that extent it is not appropriate to refer to there being a "discretion" since it is not possible in law to admit evidence which would render a trial unfair.
44. We have seen therefore that the general approach of English law is to regard the manner in which evidence was obtained (including where it was obtained unlawfully) as not leading to its automatic exclusion. The manner in which it was obtained will be a relevant factor to be taken into account when performing the exercise required by section 78 of PACE and Article 6 of the ECHR but ultimately the question for the court is whether there will be a fair trial. However, in the present case, it is submitted on behalf of the Appellant that, even before one gets to that issue, the blood sample in question was inadmissible as a matter of law, so there could be no question of admitting it at all.
IS THE SEIZED CANNABIS ADMISSIBLE EVIDENCE?
[145] We proceed now to a consideration of some of the important matters which will often be relevant and require to be taken into account in that exercise. There may of course be other factors relevant to particular cases. It is important to bear in mind that the discussion which follows is intended to be read as a whole. To isolate a particular factor would be to misunderstand the discussion and would lead to possible distortion of the process which, it is to be emphasised, requires a proper balancing of all relevant matters.
[146] The balancing exercise will not be necessary if the breach is obviously trivial. In that circumstance in a search and seizure case the conduct of the police will have been found to have been not unreasonable. Nor will it be necessary if the discovery of the evidence is not sufficiently connected with the breach (any taint is dissipated so that the breach is not to be considered to be causative of the availability of the evidence) or if it is clear that the discovery of the evidence by other legitimate means was bound to have occurred. And, naturally, if the accused has given a fully informed waiver of the right in question, there will have been no breach.
[147] The starting point should always be the nature of the right and the breach. The more fundamental the value which the right protects and the more serious the intrusion on it, the greater will be the weight which must be given to the breach. If, for example, an unlawful search or seizure involves a substantial invasion of privacy, like the taking of a blood sample, that will count heavily against admissibility. It will do so not because the evidence of the blood sample is self-incriminatory, as has been held in Canada, but because of its invasive quality. But where the breach of rights is readily excusable (for example, a breach of s 23(1)(a) or (b) in circumstances of urgency or danger) it will require rather less in the way of vindication. The breach will then be accorded less weight.
[148] Exclusion will often be the only appropriate response where a serious breach has been committed deliberately or in reckless disregard of the accused’s rights or where the police conduct in relation to that breach has been grossly careless. A system of justice which readily condones such conduct on the part of law enforcement officers will not command the respect of the community. A guilty verdict based on evidence obtained in this manner may lack moral authority. Society’s longer term interests will be better served by ruling out such evidence. We would not, however, subscribe to the Irish view of what constitutes deliberate breach, but would confine it to acts or omissions which are to the knowledge of the officers concerned a breach of rights. An action not known to be a breach of rights does not merit the same degree of condemnation as one which is known to be so, particularly if the police error arose from a genuine misunderstanding of a difficult legal complication.
[149] Whilst bad faith on the part of the police will usually require exclusion of the resulting evidence, good faith will in itself often be merely a neutral factor. In search and seizure cases where there was good faith, the balancing exercise will need to be carried out only if the Court has found that, despite that good faith, the police have behaved in a way which was unreasonable. The best that can then be said is that there was an absence of bad faith. Where the preferred approach is rights-centred the good faith of law enforcement agencies is to be expected at all times and is not something which, if present, should then add weight to argument for the admissibility of evidence. Where, however, a finding that there was a breach of a right does not involve categorising what occurred as unreasonable and the police had good reason to believe that they were acting properly, the view may sometimes be taken that the breach does not require vindication by exclusion of the evidence, because that would be disproportionate to the circumstances of the breach.
[150] The balance may be more likely to come down in favour of exclusion where other investigatory techniques, not involving any breach of rights, were known to the police to be available and not used. It is of some reassurance to the community where evidence is excluded in such circumstances that, if the same situation arises again, the police do have an available means of obtaining the evidence in a proper way.
[151] The nature and quality of the disputed evidence must be considered in the balancing exercise. It almost goes without saying that if the evidence is of doubtful reliability, and therefore not particularly probative, it will be given little or no weight. The reliability of confessional evidence obtained by means of a breach of a right will often give rise to concerns that its use at trial would be unfair. On the other hand, where real evidence, like drugs or a weapon, has been found, even as a result of a confession, the probative value of that discovery may be a weighty factor. The Supreme Court of Canada’s view of trial unfairness as encompassing even the use of real evidence of undoubted reliability should not be adopted in this country. A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence may lead to an unsafe verdict.
[152] It is also a matter which must be given weight in favour of admission if the disputed evidence is not only reliable but also central to the prosecution’s case – that the admission of the evidence will not lead to an unfair trial and the case is likely to fail without it. The more probative and crucial the evidence, the stronger the case for inclusion, although this factor ought not by itself to lead to automatic admission. Of course, if the evidence is less significant there is less reason to admit it in the face of a more than a trivial breach of rights. If, however, the crime was very serious, particularly if public safety is a concern, that factor coupled with the importance of the evidence in question may outweigh even a substantial breach. It may require the view to be taken that exclusion of the evidence, leading to failure of the Crown case, is a remedy out of proportion to the circumstances of the breach. The example of the serial murderer given in Attorney-General’s Reference is compelling. Public confidence in the justice system would obviously be severely shaken were probative evidence to be excluded in such circumstances unless perhaps the breach was both fundamental and deliberate. Weight is given to the seriousness of the crime not because the infringed right is less valuable to an accused murderer than it would be to, say, an accused burglar, but in recognition of the enhanced public interest in convicting and confining the murderer. In contrast, where the crime with which the accused is charged is comparatively minor, it is unlikely that evidence improperly obtained will be admitted in the face of a more than minor breach of the accused’s rights.
[153] We turn to the question of alternative remedies. The broad question is whether, as a matter of course, it is necessary to consider whether the breach of an accused’s rights can adequately be marked out and redressed in whole or in part by a remedy (if one is needed) which does not involve exclusion of vital and reliable evidence; and whether the answer to that inquiry may also be taken into account in the balancing exercise. The obvious difficulty is that other remedies are unlikely to be found satisfactory to provide vindication of the right in a criminal case involving a serious breach of a right whereby the police have obtained important evidence against the accused. In such circumstances, if the evidence were to be admitted and were to lead to the conviction of the accused, only the most cynical observer could take the view that a declaration by the Court that the right had been breached or reference to the Police Complaints Authority, possibly leading to a disciplinary proceeding against the transgressing police officer, could provide a form of redress which truly vindicated the right.
[154] An award of Baigent damages to a convicted criminal serving a long sentence as a means of recompensing him or her for the use at trial of evidence which the police had obtained improperly might look strange. It would appear to have no precedent elsewhere in the jurisdictions we have surveyed. So too, perhaps, would the imposition of a reduced sentence. The apparent advantage to society of convicting and locking up a particular criminal in a particular case would be outweighed by the general public perception that the police could now breach the rules and still secure such a result. Unless the crime were especially serious or involved an ongoing risk to public safety, such an outcome would be regarded by a dispassionate observer as bringing the administration of justice into disrepute.
[155] It is therefore preferable where a conviction ought to lead to a sentence of imprisonment, to put out of consideration the possibility of a means of redress other than exclusion of the disputed evidence and to make a decision on its admissibility by an appropriate balancing of other relevant factors.
ORDERS
Dated this 7th day of November 2025.
___________________________
Resident Magistrate
Vinay Sharma
[1] R v Shaheed [2002] 2 NZLR 377 at page 407
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