Republic v Degia [2022] NRSC 9; Criminal Case 2 of 2021 (12 April 2022)

IN THE SUPREME COURT OF NAURU CRIMINAL CASE NO. 2 OF 2021
AT YAREN
CRIMINAL JURISDICTION

BETWEEN

THE REPUBLIC
AND

LAKENA DEGIA Respondent

Before: Khan, ACJ

Date of Hearing: 8 and 12 April 2022
Date of Ruling: 12 April 2022

Case may be referred to as: Republic v Degia

CATCHWORDS: Application to amend information pursuant to s.191A of the Criminal Procedure (Amendment) Act 1972.

APPEARANCES:

Counsel for the The Republic: R Talasasa
Counsels for the Respondent: T Lee

RULING

INTRODUCTION

1. The Director of Public Prosecutions informed the Court that he was not going to call any further witnesses and made an application for an amendment of the information under s.191A of the Criminal Procedure Act 1972. S.191A states as follows:
   

Amendment of Information, Adjournment of Trial and Separate Trial

1. The prosecution may apply to Court to amend an information at any time before the close of the prosecution’s case.
   
2. An application under subsection (1), may be made orally or in writing and stating the particulars of the proposed amendment.
   
3. In considering an application under subsection (1), a Court may:
   
   1. Grant the application;
      
   2. Dismiss the application;
      
   100. After granting the application adjourn the proceeding for such time as it deems appropriate for the accused person to prepare his or her defence; or
        
   4. Make such other orders as the Court deems necessary.
      
2. In the information filed on 8 February 2021 two counts against the accused is as follows:
   

COUNT ONE

Statement of Offence

Indecent act in relation to a child under 16 years contrary to s.117(1)(a), (b), (c)(i) of the Crimes Act 2016.

Particulars of Offence

Lakena Degia in Meneng District, in Nauru, on an unknown date between 1 January 2018 and 31 December 2018, intentionally touched the private part of CG, the touching was indecent and that Lakena Degia was reckless about that fact, and the said CG was under the age of 13 years.

COUNT TWO

Statement of Offence

Indecent act in relation to a child under 16 years contrary to s.117(1)(a), (b), (c)(i) of the Crimes Act 2016.

Particulars of Offence

Lakena Degia in Meneng District, in Nauru, on an unknown date between 1 January 2019 and 31 December 2019, intentionally touched the private part of CG, the touching was indecent and that Lakena Degia was reckless about that fact, and the said CG was under the age of 13 years.

3. This is a very unusual case in that no formal complaint was made against the accused and he phoned the police himself and reported to committing sexual assault with another person (person not named in the first information report) on 18 January 2019 and as a result of the phone call an investigation was carried out.
   
4. Following the phone call the complainant gave a statement to SC Kitty Biang, the investigating officer (now Sgt Kitty Biang) on 19 January 2021 and on 19 January 2021 the accused was also interviewed by the police in a record of interview in which it was alleged that:
   

“It is alleged that on the unknown date between 1 January 2018 to 31 December 2019 you sexually assaulted a young female, Christine Gaskell.”

5. The accused made certain inculpatory statements to the police in his record of interview.
   
6. The evidence of Sgt Biang was that the complainant was not sure of the exact date in terms of the year as to when the incident took place and she stated that when she formulated the record of interview, she was only estimating the date and the timeframe.
   
7. The complainant in her evidence stated that the incident did not take place either in 2018 or 2019.
   
8. There were two incidents for the sake of clarity – one on the mattress in the lounge (count one) and the other one on the trampoline (count two). The complainant stated earlier that no incidents took place either in the year 2018 or 2019 and in cross examination she said that she thought it was in 2020 when she was 11 years old. As a result of this evidence the DPP made an application for amendment of these two counts. In the proposed amendment it is stated in count one that on unknown date between 10 November 2018 and 9 November 2019 the accused intentionally touched the private part of CG and the touching was indecent and in count two it is alleged that the accused on unknown date between 10 November 2019 to 31 October 2020 intentionally touched the private part of CG and the touching was indecent.
   
9. Although the DPP made this application on 8 April 2022, he stated yesterday, 11 April 2022, that he thought over the matter over the weekend and came to the conclusion that he did not want to seek amend the original counts one and two but wanted to file an amended alternative count.
   
10. When Mr Lee objected to the DPP’s application to file an alternative Count on the basis that he filed written submissions on the basis of his application filed on 8 April 2022, the DPP later withdrew his application to file an alternative count and stated that he wanted to continue with his application for the proposed amendment.
    
11. This application is based on the evidence of the complainant when she said that she thought that the incident took place in the year 2020 and there is evidence of Sgt Biang that the complainant was not sure of when the incident took place and she was only estimating the time frame in her investigation.
    
12. In relation to count one no new evidence has been adduced except the concession by the complainant that no incident took place in 2018. In respect of the proposed amendment in regards to count two the date is 10 November 2019 to 31 October 2020 and when I pointed out to the DPP that s.117 was amended on 23 October 2020 and the penalty was increased he made an application to reduce the period to 23 October 2022.
    

CONCLUSION

13. In light of my above discussion, the application for amendment has no basis and is dismissed.
    

DATED this 12 day of April 2022

Mohammed Shafiullah Khan
Acting Chief Justice