Waidabu v Republic [2022] NRSC 8; Miscellaneous Case 3 of 2022 (8 April 2022)

IN THE SUPREME COURT OF NAURU Miscellaneous Case No. 3 of 2022

AT YAREN DISTRICT

(CRIMINAL JURISDICTION)

BETWEEN

BUDDY WAIDABU Applicant

AND

THE REPUBLIC Respondent

Before: Khan, ACJ
Date of Hearing: 15 March 2022
Date of Ruling: 8 April 2022

Case to be known as: Waidabu v Republic

CATCHWORDS: Bail application – Whether the applicant has established exceptional circumstances as required by s.4B of the Bail (Amendment) Act 2020.

APPEARANCES:

Counsel for the Applicant: E Soriano
Counsel for the Respondent: R Talasasa

RULING

INTRODUCTION

1. The applicant is charged with two counts of intimidating or threatening police officers.
   
2. The alleged incidents took place on 6 February 2022 and the applicant was arrested by the police on 7 February 2022 and produced before the District Court on that day when an application for further detention was made and granted by the lay magistrates. He was detained until 10 February 2022 when he was charged and appeared before the District Court.
   
3. This is a District Court matter and in the absence of the Resident Magistrate the bail application was transferred before me under s.162(1) of the Criminal Procedure (Amendment) Act 2016 as the lay magistrates did not have the powers to deal with the bail application – see s.6(2) of the District Court Act 2016.
   
4. The applicant has been remanded in custody since 10 February 2022 after he was charged. From the time of his detention on 7 February 2022 he has already spent 60 days in custody and from the time of the charges he will have spent 58 days in custody.
   
5. The applicant applies for bail on the basis of exceptional circumstances and that his continued remand is causing his family and children extreme hardship as he was the sole breadwinner in the family and providing for his family by catching noddy birds and doing some odd jobs.
   
6. In support of the application the applicant’s wife deposed that she had to resort to seeking financial assistance from her family to be able to feed her family and had been forced to seek employment as she cannot rely on hand outs.
   
7. The bail application is opposed by the DPP. His basis for the objection is that despite the fact that the applicant’s family faces hardship it does not fall within the ambit of “exceptional circumstances’ as provided for in the Bail Act.
   
8. The applicant’s counsel has submitted that if the applicant’s wife has to resort to working then there will be nobody available to look after the two children who are aged 1 and 2 years old.
   
9. I discussed the issue of exceptional circumstances, and in particular the issue of “work commitments”, that it may constitute “exceptional circumstances” in Scotty v The Republic^[1] where I stated at [27] as follows:
   

[27] The applicant’s “work commitment” may in itself constitute “exceptional circumstances” as his continued remand has the possibility of him being unable to obtain an extension of his contract with the Government, which as I stated earlier is due to expire at the end of this month (February 2022) and thus leave 15 people unemployed who will not be able to obtain any assistance from the Government by way of unemployment benefit and therefore exposing themselves and their family members to grave financial hardship.

10. As I deal with this application the newly appointed Magistrate has not arrived in Nauru as yet. He was due to have arrived on 24 March 2022 but given the current COVID situation in Nauru it is not clear as to when he would arrive and therefore his trial will not commence within 3 months as provided for in s.4B(5) of the Bail Act. I discussed that at [28] of Scotty v The Republic where I stated:
    

[28] The Minister in his speech had stated that appropriate amendments were going to be made to expedite trials, but no such amendments have been made to date. Under s.4B(5) of the Act the applicant is entitled to be granted bail without the need to establish “exceptional circumstances” if the trial has not commenced within 3 months (90 days) and he has already spent 60 days in custody and there being no Magistrate on the Island as of now; and even with the appointment of the second Resident Magistrate who is yet to arrive, and it is not known as to when he will arrive, and further delay being compounded by Covid 19 pandemic it is unlikely that his trial will commence in the next 30 days.

11. It is unlikely that his trial will commence in the next 30 days and by then he would have been remanded in custody in excess of 3 months and would be entitled to bail as of right without proving “exceptional circumstances”.
    

CONCLUSION

12. For the reasons given above, I am satisfied that having taken into account all the matters, the applicant has established exceptional circumstances.
    
13. He is granted bail in the sum of $500 in his own recognisance with a surety for like sum with the condition that he should report to the Nauru Police Station on every Friday between 6am to 6pm and he should not interfere with the prosecution witnesses.
    

DATED this 8 day of April 2022

Mohammed Shafiullah Khan
Acting Chief Justice

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^[1] [2022] NRSC 6; Miscellaneous Case No. 51 of 2021 (15 January 2022)