Temaki v Republic [2020] NRSC 49; Criminal Case 21 of 2020 (24 November 2020)

IN THE SUPREME COURT OF NAURU
AT YAREN DISTRICT
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 21/2020

BETWEEN

PRIMA TEMAKI Applicant
AND

THE REPUBLIC Respondent

Before: Khan, ACJ
Date of Hearing: 20 November 2020
Date of Ruling: 24 November 2020

Case may be referred to as: Temaki v Republic

CATCHWORDS: Bail – application for bail – applicant charged for assaulting and intimidating police officers – whether the applicant has established exceptional circumstances – as required by section 4 B of Bail (Amendment) Act 2020 – bail granted.

APPEARANCES:

Counsel for the Applicant: R Tagivakatini
Counsel for the Respondent: R Talasasa (DPP)

RULING

INTRODUCTION

1. The applicant is charged with two counts which are as follows:
   
   1. Intimidating or threatening a police officer contrary to section 77A of the Crimes (Amendment) Act 2020 which came into effect on 23 October 2020. The sentence for this offence is 5 years imprisonment and one-third of the sentence has to be served without parole or probation.
      
   2. Causing harm to a police officer – contrary to section 77 (a)(b) (c) (d) and (i) of the Crimes Act 2016. The original sentence for this offence was 10 years imprisonment for aggravated circumstances and otherwise 8 years imprisonment, however, that sentence was substituted by the Crimes (Amendment) Act 2020 by a sentence of life imprisonment for aggravating circumstances out of which 12 years has to be served without parole or probation and 20 years in other cases out of which at least one-third has to be served without parole or probation.
      
2. The alleged incident took place on 4 November 2020. The applicant was brought before the District Court on the same day charged with the above offences. Apart from filing the charge the respondent’s counsel, Miss Serukai, also filed a motion under section 12 of the Bail Act 2018 and section 4(b)(i)(a)(iii) and (iv) of Bail (Amendment Act) 2020.
   
3. Magistrate Lomaloma read and explained the charge to the applicant who was unrepresented and transferred the case to this Court to be called on 5 November and the applicant was remanded in custody in the meantime.
   
4. On 5 November 2020 the applicant appeared before this Court and was represented by Mr Tagivakatini and Miss Serukai for the respondent submitted that this was a non bailable offence and sought remand of the accused in custody. Mr Tagivakatini had no objection to the remand and the applicant was remanded in custody for 14 days and the case was adjourned to 19 November 2020.
   
5. After the applicant was remanded in custody her counsel, Mr Tagivakatini, filed a bail application on her behalf on 5 November 2020. The application was supported by an affidavit of her husband, Robinson Temaki, in which he deposed that:
   
   1. He is in full time employment as a miner with RONPHOS;
      
   2. That they have 3 children – an 18-year-old son named Robson and 2 daughters aged 13 and 9 years old;
      
   100. That his son had been remanded in custody and the daughters do not feel safe at home while he is away at work;
        
   4. That the applicant was a full-time housewife and she looked after the children.
      
6. On 19 November 2020 Sgt Kirsty Karl filed an affidavit on behalf of the respondent in which she stated that:
   
   1. That she is familiar with this case in which the applicant had threatened the Deputy Commissioner of Policer to release her son and she assaulted Snr Const Eliza-May Appi by pulling her hair and poking her in the eyes;
      
   2. That there are 4 eye witnesses to this incident;
      
   100. That the applicant participated in a record of interview in which she stated that she acted in self-defence;
        
   4. That the applicant son, Robson Temaki, was also involved in assaulting police officer and was remanded in custody;
      
   5. That the applicant has 2 daughters aged 13 and 9 years old;
      
   6. That the offences were against police officers and bail should be refused.
      

RELEVANT LAW

7. Section 4 of the Bail Act 2018 (2018 Act) was amended by section 5 of the Bail (Amendment) Act (2020 Act). The amendment is as follows:
   

Section 5 – Amendment to section 4

Section 4 is deleted and substituted as follows:

‘4. Entitlement to bail

1. Subject to the provisions of this Act, every accused person has a right to be released on bail.
2. A court may grant bail to an accused person charged with an offence in accordance with the provisions of this Act.
3. The presumption in favour of the granting of bail to an accused person under subsection (1) may be rebutted by a prosecutor or any other person, where the interests of justice so requires.’
   

Section 6

4A Bail not to be granted in certain circumstances

A person shall not be granted bail where:

(a) he or she is charged with an offence:

(i) of murder, treason or sedition;

(ii) under Part 7, Divisions 7.2 and 7.3 and Part 8 of the Crimes Act 2016; or

(iii) under Part 3 of the Counter Terrorism and Transnational Crime Act 2004;

(b) he or she has previously breached a bail undertaking or condition;

(c) he or she is arrested under the provisions of the Extradition Act 1973; or

(d) he or she is convicted of one or more of the offences in subsection (1)(a) and is appealing such conviction.’

‘4B Bail for certain offences in exceptional circumstances

(1) Subject to subsection (2), a court shall not grant bail, except in exceptional circumstances:

(a) on an application of a person charged with any of the following offences:

(i) attempt to murder;

(ii) manslaughter;

(iii) assaulting a police officer in the execution of the police officer’s duties;

(iv) intimidating or threatening a police officer in the execution of the police officer’s duties; or

(v) contempt of court under the Administration of Justice Act 2018;

(b) where an accused person is incapacitated by intoxication, injury or use of drugs or is otherwise in danger of physical injury, self-harm or in need of protection.

(2) Subsection (1) shall not apply to an accused person who has been previously convicted by a court for one or more of the offences in subsection (1).

(3) Where an accused person is remanded in custody under this Section, the court shall direct the parties for an expeditious trial and conduct the hearing of the cause or matter.

(4) The onus of establishing exceptional circumstances under subsection (1) shall be on the accused person.

(5) An accused person, who is remanded in custody under this Section, may apply for bail on any grounds or reasons, other than exceptional circumstances under subsection (1), where the trial for the offence he or she is charged with has not commenced within 3 months of the date on which the information or charge was filed in court.

(6) This Section shall remain in force for 5 years and may be reviewed by the Parliament.’

8. The application is made pursuant to Section 4B of the 2020 Act.
   
9. The parties agree that this application is competent and that the onus is on the applicant to establish exceptional circumstances, and if she fails to do so then the bail will be refused.
   
10. When the application was set down for hearing the respondent had not filed depositions and during the course of the hearing the respondent filed depositions which were served on the applicant.
    
11. Section 4B of the 2020 Act does not define as to what is meant by ‘exceptional circumstances.’
    
12. Mr Tagivakatini in his submissions relied on the case of Samaranch Engar v Republic^[1] where Jitoko CJ stated at page 13 as follows:
    

“What constitutes an exceptional circumstance is for each of the case to show and prove and for the Court to be satisfied that a certain threshold is reached, where it would be appropriate and in the interests of justice for the applicant to be released on bail while waiting for the appeal to be heard.”

13. Mr Tagivakatini further submitted that the safety of the applicant’s 2 daughters and the disruption faced by the family whilst the applicant is remanded in custody constitutes exceptional circumstances.
    
14. The DPP submitted that under section 17(2) of the 2018 Act the primary consideration in considering or granting bail is whether the accused will appear in Court to the charges laid against her; and that section 18 will assist the Court in determining as to what is exceptional circumstances. Under section 18 when submission is made against the presumption in favour of bail the person opposing bail shall address:
    

(a) – likelihood of accused not appearing in Court;

(b) – interest of the accused person;

(c) – public interest and protection of the community.

15. The DPP further submitted that the ‘personal hardship’ as referred to by the Minister for Justice, Honourable Maverick Eoe, in the second reading of the 2020 Bill is not exceptional hardship, nor is the risk of the 2 girls being exposed and possibly be preyed upon by predators.
    
16. As I said earlier, the depositions were filed by the respondent during the course of the hearing and it came to light that the applicant was taken from the Correctional Centre on 10 November 2020 to the Nauru Police Station for her to participate in a record of interview when she was remanded in custody by the Court.
    
17. The DPP submitted that notwithstanding the fact that the applicant had been charged the police still had the powers to take away the applicant for her to participate in the record the record of interview; and Mr Tagivakatini submitted that the police had no such powers and submitted that their action was unconstitutional.
    
18. The DPP in its submissions made reference to a number of cases from Solomon Islands and Papua New Guinea on the issue of what is exceptional circumstances. These cases that he referred to dealt with exceptional circumstances after the accused were convicted and did not assist the Court in determining as to what is exceptional circumstances in the context of section 4B.
    

CONSIDERATION

19. It is important to ascertain the reasons behind the enactment of section 4A and B and to do so I will refer to the second reading of the speech of Honourable Maverick Eoe MP, when the Bail (Amendment) Bill 2020 was introduced before Parliament. In that speech it was stated as follows:
    

“...Mr Speaker there has been a growing trend largely in sexual offences cases and assaults on police officers. Also, in sexual offences cases where normally children are involved or in cases of a relationship of trust, it becomes difficult when the perpetrators of such crime interfere or use influence on the victims or those who control the victims. The proposed amendment to the Act by this Bill addresses this as a measure to control such conduct and to secure a fair trial without any interference or influence by any person. These prevalent problems need to be addressed. In the proposed Bill, a third category is included which allows for an accused person to be remanded in custody, unless the person charged is able to demonstrate exceptional circumstances as to why he or she should be granted bail. Appropriate amendments will also be made to the Criminal Procedure Act for this list of cases to be heard expeditiously. A period of 3 months is allocated for this. After a lapse of 3 months, an accused person who is remanded and whose trial has not begun, may apply for bail which in many cases the court may grant on grounds of delay in trial. For the purposes of demonstrating exceptional circumstances, the legislation makes it clear that hardship is not one of them.

The proposed amendment is carefully drafted to ensure there is a balance between the protection of the victim as well as the community and that of the right of the accused person to be treated as innocent until proven guilty. This balancing act is to avoid the deprivation of a person’s right to liberty unnecessarily.

Mr Speaker, this Government is concerned with the impact that such crimes are having in our community, in particular, the vulnerable and children.

Let me refer to the amendments. There is a presumption in favour of bail for a person charged with an offence. The universal principle is retained. Clause 4A retains the non-bailable offences. Clause 4B allows for bail to be granted in exceptional circumstances. Under Clause 4B the onus is on the accused person to satisfy the Court as to why he or she should be granted bail. It is the discretion of the Court which will determine the matter.”

20. The reason behind the enactment of section 4A and 4B were the increase in the number of sexual offences cases and assaults on police officers.
    
21. Under section 4B an applicant to be granted bail for the offences mentioned therein has to demonstrate exceptional circumstances; and if he or she is unable to do so, then bail will be refused. There is also an onus on the Court to expedite the trial; and if the trial has not commenced within 3 months, then bail would be granted on grounds of delay, in that instance there is no need for an applicant to show exceptional circumstances.
    

WHAT ARE EXCEPTIONAL CIRCUMSTANCES?

22. There is no clarity as to what is exceptional circumstances, however, the Minister in his speech stated:
    

“... the legislation makes it clear that hardship is not one of them.”

And further stated:

“Under clause 4B the onus is on the accused person to satisfy the Court as to why he or she should be granted bail. It is the discretion of the Court which will determine the matter.”

23. Without giving any clarity as to what is exceptional circumstances Parliament left it ‘in the discretion of the Court which will determine the matter’. This is indeed a difficult task, but since it is left to the Court it has to be determined.
    

JUDICIAL DISCRETION

24. What is judicial discretion? In an article on Judicial Discretion by Lloyd Babb SC^[2] he stated at page 1 as follows:
    

“Defining Judicial Discretion

Judicial discretion is exercised when a judge is granted a power under either statute (‘statutory discretion’) or common law that requires the judge to choose between several different, but equally valid, courses of action.

The legal concept of discretion implies power to make a choice between alternative courses of action. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no uniquely right answer to his problem.

Discretionary decisions are those where the judge has an area of autonomy, free from strict legal rules, in which the judge can exercise his or her judgment in relation to the particular circumstances of the case.”

25. The other Courts have also struggled in defining exceptional circumstances. In DPP v Cozzi^[3] Coldrey J stated at [18] and [19] as follows:
    

[18] The concept of exceptional circumstances is, itself, an illusive one. The phrase is not defined in the Bail Act 1997 (the Act), although some Judges have essayed a definition. In Tang & Ors[5], Beach J made reference to dictionary definitions of the word "exceptional". His Honour found that whatever definition was used, the applicant for bail "bears an onus of establishing that there is some unusual or uncommon circumstance surrounding his case before a court is justified in releasing him on bail".[6] In the course of argument the decision of Kaye J in the case of In the Matter of a Bail Application by Ismail Muhaidat[7] was cited. In it his Honour remarked (p.2):

"The question of what are exceptional circumstances have been canvassed before. Effectively the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail."

[19] On the other hand in Re the Matter of Application for Bail by John Denis Moloney[8] Vincent J, a most experienced Judge, pointed out that it was not possible to identify in any general definition what factual situations constituted exceptional circumstances. His Honour stated:

"A number of decisions which have been handed down by Judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified."( emphasis added)

FACTORS THAT MAY CONSTITUTE EXCEPTIONAL CIRCUMSTANCES

26. In Cozzi it is stated at [22] as follows:

“[22] Among the major factors found to constitute exceptional circumstances have been the strength of the Crown case (where that may be sensibly assessed); the question of delay to committal and/or trial; and principles of parity (insofar as they are applicable to a bail application). As to the many other factors that courts have taken into account I use as examples only those cases cited in argument before this Court, which constitute but a representative sample. In DPP v Nguyen[9] the fact that the Magistrate had taken into account, in addition to issues of the strength of the Crown case, delay and parity, strong family support, stable accommodation, employment and low risk of flight or re-offending was accepted by the Judge without adverse comment. Similarly, in Commonwealth Director of Public Prosecutions v Banda[10] which was, like Nguyen, a Director's appeal, the Magistrate, in finding exceptional circumstances, took into account the family situation and the personal situation of the respondent, including his primary role in caring for his mother, a significant role in caring for a surrogate father with serious health problems, his provision of financial support for a former partner looking after their intellectually handicapped daughter, work commitments, a strong attachment to the State and a lack of any unacceptable risk that the respondent may abscond and/or commit further offences as relevant factors, quite apart from potential delay or the principle of parity. The Judge was not persuaded that the Magistrate's decision that there were exceptional circumstances was manifestly wrong. In the case of In the Matter of an Application for Bail by Andrea Mantase[11] such factors as lack of any prior criminal history, constant employment, an unlikelihood of absconding and the personal situation of the applicant's wife who had recently had a miscarriage, were factors which, together with likely delay, were found to constitute exceptional circumstances.”

27. The common factor that was discussed in Cozzi is the strength of the case for the prosecution and the question of delay, however, under section 4B the question of delay cannot be considered before the 3-month period. In determining as to whether an applicant has established exceptional circumstances amongst other considerations the strength of the prosecution case has to be considered.
    

CASE AGAINST THE APPLICANT

28. On the facts the case against the applicant seems to be very strong, however, I am concerned about the police conducting her record of interview whilst she was remanded in custody. This is in breach of the Court order made for remand on 5 November 2020 and further it may potentially be in breach of Article 10 of the Constitution where it is provided:
    

(2.) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial Court.

29. When the accused was brought before the District Court the respondent in addition to filing the charges referred to above also filed a motion for detention under section 12 of the 2018 Act and under section 4B of the 2020 Act. The Court has no powers to order further detention under those sections; the application for further detention could have been made under Article 5(3) of the Constitution and if the detention was extended then of course the police would have been at liberty to take the applicant for the record of interview, but no such application was made in the District Court.
    
30. As I stated earlier, the respondent’s case on the facts appeared to be strong – but has become complicated somewhat because of the issues that I have discussed above. If the applicant wants to file a Constitutional Redress Application then that has to be filed by way of a separate process under section 29 of the Supreme Court Act 2018.
    
31. In Cozzi at [22] it is stated that ‘... the Magistrate, in finding exceptional circumstances took into account the family’s situation and the personal situation of the respondent, including his primary role for his mother, a significant role in caring for a surrogate father with serious health problems, his provision of financial support for a former partner looking after their intellectually handicapped daughter’. In this matter, the applicant states that her 2 daughters are at risk of being preyed upon in her absence when her husband goes to work.
    

INFORMATION

32. After the hearing on 20 November 2020 the respondent filed the information in court the first count is still for intimidating or threatening a police officer and the second count is for causing harm to police officer with an additional second count (I think that DPP meant as an alternative count) of common assault. This is a huge concession by the DPP.
    
33. For the reasons given above, I find that ‘viewed as a whole’ the accused has established exceptional circumstances as required under section 4B and she is released on bail in her recognisance in the sum of $500 with her husband as surety for like sum.
    

DATED this 24 day of November 2020.

Mohammed Shafiullah Khan
Acting Chief Justice

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^[1] Criminal Case No. 04 of 2018; as delivered on 4 September 2019
^[2] Director of Public Prosecutions (NSW) University of Wollongong, 27 April 2012
^[3] [2005] VFC 195 (8 June 2005)