IN THE SUPREME COURT OF NAURU
AT YAREN
CRIMINAL JURISDICTION 	Miscellaneous Proceedings No. 52 of 2021
In the matter of an application for bail
pending trial pursuant to Sections 4, 17 and 18 of the Bail Act 2018 in Criminal Case No. 52 of 2021	

BETWEEN						

JAKE SCOTTY					Applicant

AND

THE REPUBLIC					Respondent	

Before:				            Khan, ACJ
Date of Hearing:			29 December 2021
Date of Ruling:			5 January 2022

Case to be referred to as:	Scotty v The Republic 

CATCHWORDS:	Application for bail – Whether exceptional circumstances established by the applicant – Where the applicant was remanded in custody – Whether the police were at liberty to conduct a record of interview after he was charged. 

APPEARANCES:	

Counsel for the Applicant:		T Lee		
Counsel for the Respondent:		S Shah 

RULING

INTRODUCTION

1.	The defendant is charged with the following offence: 

STATEMENT OF OFFENCE

INTIMIDATING OR THREATENING A POLICE OFFICER:  Contrary to section 77A of the Crimes Act 2016.

PARTICULARS OF OFFENCE

Jake Scotty on 18th December 2021, at Meneng District in Nauru, intimidated Constable Kanisha Dube in the execution of Constable Kanisha Dube’s duties.

2.	The defendant first appeared before Magistrate Lomaloma (Magistrate) on 18 December 2021 when he was charged with the offence of obstructing a public official.  That charge stated: 

STATEMENT OF OFFENCE

OBSTRUCTING PUBLIC OFFICIAL:  Contrary to section 242(a) and (b) of Crimes Act 2016. 

 PARTICULARS OF OFFENCE

Jake Scotty on 18th December 2021 at Meneng District in Nauru, obstructed Constable Kanisha Dube in the exercise of Constable Kanisha Dube’s functions as a police officer and that Jake Scotty believes that Constable Kanisha Dube is a police officer. 

3.	On 18 December 2021 the defendant was remanded in custody until 20 December 2021when  
 the prosecution filed the amended charge of intimidating or threatening a police officer (referred to in paragraph 1 above).  He appeared before the Lay Magistrates and they transferred the matter to the Supreme Court under section 162 of the Criminal Procedure (Amendment) Act No. 2 of 2016 to deal with the bail application.

4.	The offence of intimidating or threatening a police officer fall within s.4B of the Bail (Amendment) Act 2020 and bail cannot be granted except in “exceptional circumstances” – see s.4B(1) and (iv). 

BAIL APPLICATION

5.	On 20 December 2021 Mr Ekwona appeared for the defendant and indicated to the court that he will be filing an application for bail and the matter was adjourned to 21 December 2021 to enable him to do so.  On 21 December 2021 Mr Ekwona filed an affidavit of the defendant in support of the bail application.  
  
6.	On 22 December 2021 prosecution filed an affidavit of Sgt Liberty Adeang in opposing the bail application.  

7.	On 23 December 2021 Mr Lee took over this matter from Mr Ekwona and filed written submissions in support of the bail application.  

8.	Mr Shah for the prosecution filed his written submissions in opposing bail on 29 December 2021.  

ISSUES FOR DETERMINATION  

9.	The issue for determination is whether the defendant has established “exceptional circumstances” as required by s.4B of the Bail Act, and if so, then bail ought to be granted; and if not, then bail has to be refused.  Before I consider the bail application, I shall set out an outline of how the matter came before the District Court and the events that followed.

MATTER BEFORE THE DISTRICT COURT AND EVENTS THAT FOLLOWED
  
10.	The alleged incident took place on 18 December 2021 at around 3.20am when the complainant, Constable Kanisha Dube, was at a checkpoint in Meneng District to control the traffic. 
  
11.	The defendant was produced before the District Court on 18 December 2021 at 4pm charged with one count of obstructing a public official (see paragraph 2 above). 

12.	Prior to his appearance before the District Court the defendant was formally charged in a Statement Answer to Charge Form wherein it was put to him that he was charged for the offence of obstructing a public official and he was cautioned and told that whatever he says in relation to the charge will be taken in writing and given in evidence against him.  The defendant’s response was: 

“I didn’t obstruct anyone, I just pushed gently.” 

13.	At the District Court the charge of obstructing a public official was signed by Mr Shah and it was also signed by the Magistrate and the charge was filed pursuant to the provisions of s.51 of the Criminal Procedure Act 1972.  S.51 states: 

Complaint and Charge

1)	Proceedings may be instituted either by the making of a complaint to a magistrate or by the bringing before the District Court of a person who has been arrested without warrant.  
  
2)	A person who believes from a reasonable and probable cause that an offence has been committed by a person may make a complaint thereof to a magistrate. 

3)	A complaint may be made orally or in writing but, if made orally, shall be reduced to writing by the magistrate; and, in either case, it shall be signed by the complainant and the magistrate: 

Provided that, where proceedings are instituted by a police officer or any other public officer acting in the course of his or her duty, a formal charge duly signed by that officer may be presented to the magistrate and shall, for the purposes of this Act, be deemed to be a complaint.    

4)	The magistrate, upon receiving any such complaint, shall unless the complaint has been laid in the form of a formal charge under subsection (3), draw up, or cause to be drawn up, and sign a formal charge containing a statement of the offence with which the accused is charged. 
  
5)	Where an accused person who has been arrested without a warrant is brought before the District Court, a formal charge, containing a statement of the offence with which the accused is charged, shall be signed and presented by a police officer.  

14.	The magistrate gave a written ruling in remanding the defendant and stated at [14] that: “the prosecution application to use s.51 of the Criminal Procedure Act is declined”. 
 
15.	The magistrate at [9], [10], [11] and [12] of his ruling stated: 

[9]	The discretion as to what charges are to be laid against an accused person belongs to the prosecutor.  It is a decision to be made after looking at all the evidence properly and considering all the circumstances of the offending.  The accused was arrested about 12 hours ago.  He was drunk at the time.  He needs to sober up before his interview is conducted.  The prosecution are entitled to make an application to amend the charge at any time, including in court today.  

[10]	On the literal meaning of section 4B(1)(a)(iv) of the Bail Act, the accused would not be entitled to bail once the charges under section 77A of the Crimes Act are filed, either by an application to amend the charge or an application to use section 51 of the CPC 1972.  The purpose of section 4B(1)(a)(iv) of the Bail Act is to deter persons from threatening or intimidating police officers performing their duties.  

[11]	The prosecution can always amend the charge in court or later in the interests of justice. 

[12]	It is in the interests of justice that the decision to charge him with a more serious offence should not be made quickly.  It is in the interests of the accused that he should not be charged with a more serious offence now.  The police have not completed their investigation and it is in the interests of justice that the accused be remanded for them to do so.    

16.	On 21 December 2021 whilst the defendant was in remand pending his application for bail, he was interviewed by Sgt Liberty Adeang in a question-and-answer form of record of interview.  The allegation was put to him in the record of interview which states: 

“It is alleged that you on the 18th December 2021 you allegedly assaulted a police officer namely, Kanisha Dube, by means of pushing her when executing her duties and drinking whilst travelling in a vehicle as a passenger.  Do you understand?”
  
17.	Mr Lee in his submissions stated that the magistrate in taking the evidence of Inspector Appin which formed the basis of his ruling had deprived the defendant of his constitutional rights enshrined in Article 10(3)(a) of the Constitution which states that: 

“A person shall be presumed to be innocent until proven guilty according to law”.  
  
18.	He made reference to [6] of the ruling where the magistrate stated:

[6]	The facts which were stated on oath by Inspector Dinamu Appin is sufficient to lay charges under either section 242 or section 77A of the Crimes Act 2016.  Section 77A carries a maximum sentence of 5 years imprisonment and it is an offence for which bail is not available.  
  
19.	Mr Lee further submitted that the defendant was charged initially on 18 December 2021 and subsequently by way of an amended charge on 20 December 2021 and the record of interview was conducted on 21 December 2021 which is improper; and that the defendant when charged for the offence of obstructing a public official and making the admissions will be subject to a challenge by way of voir dire.  He further submitted that the defendant merely stretched out his hand to stop the complainant from going to the window of the passenger, Pango, that there was no “malicious intent” or “guilty mind”; and that the entire case against the defendant is “unclear, tenuous and even doubtful”.  He submitted that the defendant has satisfied the threshold of exceptional circumstances and bail should be granted.  
  
20.	Mr Shah submitted that the evidence against the defendant is strong on the basis of the statement of the complainant herself and the statement of police officer George Herman who saw the defendant push the complainant.  He further submitted that the defendant’s main concerns are his pets, which does not fall within the ambit of exceptional circumstances. 

CONSIDERATION

21.	S.51 of the CPA 1972 states as to how a criminal proceeding may be instituted; there are two processes of making the complaint, either orally or in writing.  In this matter, the complaint was made in writing by Mr Shah and all that the magistrate was required to do under s.51(3) was to sign the charge which he did and there was no need for him to give a ruling.   
 
22.	The other matter of concern to me is when the magistrate stated that the application under s.51 was declined; and yet he signed the charge under s.51(3), which is contradictory and further there is no such thing, in my view, as a s.51 application.  

23.	The defendant was interviewed by the police on 21 December 2021 in the form of a record of interview.   In Benjamin v The Republic Thompson CJ stated at [1] as follows: 

[1]	As the English Law of evidence is applicable in Nauru by the Customs and Adopted Laws Act 1971, the English Judges Rules should be observed in Nauru. 

24.	The questioning of the defendant in the form of a record of interview on 21 December 2021was in breach of the Judges Rule and (III) which states: 

(III)	-

a)	Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms: 

	“Do you wish to say anything?  You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence”.  
    
b)	It is only in exceptional cases that the questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted [He may, however, be questioned about other offences: R v Buchan [1964] 1 W.L.R. 365; 48CR. App. R. [126].]  Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to other persons or to the public or for clearing an ambiguity in the previous answer or statement.(Emphasis added)
   
25.	The prosecution case against the defendant is very strong in that he pushed the complainant whilst he is trying to suggest that he just held out his hand to stop her from going to the passengers at the back of the car.  The prosecution’s version is supported by the defendant himself when he stated that he pushed her gently.  I know that Mr Lee has foreshadowed that this may be the subject of a voir dire, which is a matter for trial, but for the present purposes I can rely on that which supports the prosecution’s version.  The defendant’s main concern is the welfare of his pets if he is remanded in custody and that does not constitute exceptional circumstance.

CONCLUSION  

26.	In the circumstances I am not satisfied that the defendant has established exceptional circumstances and therefore his application for bail is refused. 

DATED this 5 day of   January 2022

Mohammed Shafiullah Khan
Acting Chief Justice