Republic of Nauru v Dagagio [2015] NRSC 19; Case 73 of 2015 (11 December 2015)

IN THE SUPREME COURT OF NAURU

[CRIMINAL APPEAL JURISDICTION]

Case No 73 of 2015

IN THE MATTER OF an appeal against Acquittal
in relation Criminal Case No. CF 59/2013 at the
District Court

Between:

THE REPUBLIC OF NAURU
APPELLANT

And :

FRISCO DAGAGIO
MYKO OLSSON
RESPONDENTS

Before: Crulci J

Appellant : L. Savou
Respondent : R. Tagivakatini

Date of Hearing: 4 December 2015
Date of Decision: 11 December 2015

CRIMINAL APPEAL – Acquittal in District Court – insufficiency of evidence to support charge – offences alleged within Correctional Centre - Appeal dismissed.

JUDGMENT

BACKGROUND

1. On the 11th January, 2013, at the time of the offence alleged, both Respondents were incarcerated in a prison cell at the Yaren prison.
   
2. As a result of another prisoner's behaviour whilst in a separate cell, that prisoner was subdued and placed in handcuffs by Correctional Officers Jesse Uepa and Delton Dowabobo.
   
3. The Respondents were unhappy with the way the prisoner was treated and shouted out from the cell they were in at the two Correctional Officers.
   
4. Initially both accused were each separately charged with two offences contrary to section 73 of the Criminal Code of Queensland 1899, one count naming Jesse Uepa as the complainant, and the second count naming Delton Dowabobo as the complainant.
   
5. On the day of trial, 1st June 2015, the witness Delton Dowabobo was not present in Nauru. The prosecution sought to withdraw the charges before the court and preferred an amended charge which reads as follows:
   

Statement of Offence:

Challenge to fight a duel: Contrary to section 73 of the Criminal Code 1899

Particulars of Offence

Frisco Dagagio and Myko Ollson on the 11th day of January 2013 at Nauru did unlawfully challenge another namely Jesse Uepa to fight a duel.

6. The prosecution called one witness, Jesse Uepa. The interview transcripts were tendered by consent. The defence did not call any witnesses.
   
7. The Resident Magistrate summed up the evidence given to the Court and found that the prosecution had failed to prove the case beyond reasonable doubt and acquitted the accused.
   

RELEVANT STATUTORY PROVISIONS

8. Criminal Code of Queensland 1899 (1st Schedule) Adopted
   

Challenge to fight a Duel

73. Any person who challenges another to fight a duel, or attempts to provoke another to fight a duel, or attempts to provoke any person to challenge another to fight a duel, is guilty of a misdemeanor, and is liable to imprisonment with hard labour for three years.

9. Appeals Act 1972
   

APPEAL TO THE SUPREME COURT

...

3. (2) Where the District Court has ordered the acquittal of any person in any cause, the Director of Public Prosecutions or, with his sanction in writing, any person who prosecuted the case before the District Court, may appeal under this Part of the Act to the Supreme Court against the order of acquittal.

DETERMINATION OF APPEAL BY THE SUPREME COURT IN ORDINARY CASES

14. (1) At the hearing of an appeal the Supreme Court shall hear the appellant or pleader, if he appears, and the respondent or his barrister and solicitor or pleader, if he appears.

....

(5) The Supreme Court on an appeal against acquittal shall allow the appeal, if it thinks that the verdict should be set aside on the ground that-

(a) the facts found by the District Court to have been proved establish the offence charged or any other offence of which the accused person could have been convicted on the trial of that charge;

(b) on the evidence before it the District Court could not properly have decided that the facts establishing any such offence had not been proved; or

(c) the District Court wrongly excluded evidence tendered by the prosecution which, if admitted and believed by the Court, must have resulted in the Court finding facts proved which would have established any such offence;

and in any other case shall dismiss the appeal;

...

GROUNDS OF APPEAL

10. The appellant filed his appeal against the sentence, on the following grounds:
    
    • (1) The Resident Magistrate erred in law and fact when she acquitted the two Respondents;
    • (2) The Resident Magistrate erred in fact when she failed to give appropriate weight to the evidence given by the defence against the prosecution witnesses
    • (3) The Resident Magistrate erred in law by not addressing the law on defective charges
    • (4) The Resident Magistrate erred in fact when addressing the issue of prosecution not putting the name Delton Dewabobo on the charge being fatal to the prosecution case
    • (5) The Resident Magistrate erred in law and fact by not convicting the two respondents for the charge against Jesse Uepa.
      
11. Written submissions have been filed with the Court for the Appellant and the Respondents.
    

EVIDENCE BEFORE THE DISTRICT COURT

12. The Prosecution called one witness, Jesse Uepa. His evidence can be summarized as follows:
    
    • Works as a warden at Nauru Correctional Services (NCS)
    • Worked at NCS for 4 years
    • On 11 January 2013 was working from 8:00 am to 4:00 pm
    • A prisoner became angry and started a fire in his cell
    • The witness and Delton Dewabobo went into the cell and tried to stop the fire
    • The prisoner resisted, so was handcuffed
    • The Respondents started swearing at the witness and Dewabobo, mostly at Dewabobo
    • Words used were "You're a dickhead"
    • The Respondents asked for their cell to be opened so that they could fight a duel
    • The Respondents were located in a cell a substantial distance away
    • The witness was angry and went outside
    • The witness wanted to accept the duel, Dewabobo stopped him
    • Dewabobo used his knees on the prisoner to subdue him
    • The Respondents started screaming at them when they saw what was they were doing to the prisoner
    • The prisoner was dragged on the ground whilst handcuffed
    • Respondent Myko challenged the two officers and Respondent Frisco swore at Dewabobo
    • Dewabobo is on leave at the moment
    • Witness agrees that only Dewabobo was challenged because of what he was doing to the prisoner
    • Witness then answers "yes but as far as I know, the two were telling us to open the cell for them to have a duel."
      
13. The caution interview of Respondent Frisco Dagagio, dated 27th February 2013:
    

Q12: A12: Q15: A15:

Frisco, do you have anything to say relating to the allegation against you? I just want to say that I actually saw Delton Dowabobo kicking Melvin Roland while his was hand cuff on the ground, also Delton was swearing at Melvin say to him "fuck you own mother". Jesse was just performing his duty lawfully. I just yelled at Delton and Donna Quadina for unlawfully performing their duty by unlawfully applying unnecessary force dragging Melvin on the ground while being hand cuff and then they threw him in the high risk cell still hand cuff. Frisco it is alleged that you on the date above you challenged two inmates Mr. Delton and Mr. Jesse for a fight and also threatening by saying you see them outside for a fight, what can you say to that? I never said such words to challenge them, if I had said such words I will tell the truth, I am just trying to live a good life to serve my time.

14. The caution interview of Respondent Myko Ollson, dated 26th February 2013; tendered by consent:
    

Q13: A13: Q14: A14:

What is your relation to Mr. Delton Dowabobo and Mr. Jesse Uepa, what can you say to that? They were my friends. Myko it is alleged that you on the date above you challenged two Prison Warder Mr. Delton and Mr. Jesse for a fight and also threatening by saying you see them outside for a fight, what can you say to that? I didn't say that, they said to me, they'll meet me when I am out of prison.

DECISION

15. The questioning put to the Respondents was in relation to a fight, and challenging the witnesses to fight. The witness in his evidence to the Court refers to the term "duel"; archaic terminology used in the charge.
    
16. Dictionary definition of a 'duel' refers to a term used in the 1500 and 1600s as 'a regular fight between two persons; especially one prearranged and fought with deadly weapons, usually in the presence of two witnesses called seconds, to settle a quarrel or point of honour'. The offence of challenging to a duel no longer exists in neighbouring Common Law jurisdictions.
    
17. It is for the prosecution to prove the offence charges against the accused. It is for the Prosecution to correctly frame the charge(s). It is not for the accused to prove their innocence. The accused were entitled to remain silent and no adverse inference can be drawn from this decision.
    
18. The Resident Magistrate had the benefit of observing the witness give evidence. It was open to her on the evidence before the District Court to properly decide that the facts establishing the offence charged had not been proved, that the Prosecution had not made its case and to acquit the accused.
    
19. This offence took place within a correctional facility, whilst both Respondents were locked inside a cell. The Correctional Services Act 2009 authorizes the Chief Correctional Officer with the management and discipline of staff and prisoners. The Act also deals with offences committed within a centre, for example:
    

Disorderly Manner in a Correctional Centre

s. 53 Any person who acts in a disorderly manner in a correctional centre commits an offence and is liable to a fine of $500 or to six months' imprisonment or both.

This was a matter which in the Court's view would have been more properly dealt with by the Chief Correctional Officer as an internal disciplinary matter.

20. Court finds nothing in the evidence and submissions to disturb the finding of the District Court. The appeal is dismissed.
    

......................................................
Crulci J

Dated this 11 day of December 2015