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Republic v SF [2021] NRSC 32; Criminal Appeal 2 of 2021 (27 August 2021)


IN THE SUPREME COURT OF NAURU CRIMINAL APPEAL No 2 of 2021
AT YAREN
APPELLATE JURISDICTION


BETWEEN


REPUBLIC

Appellant/Cross Respondent

AND


SF

Respondent/Cross Appellant


Before : Fatiaki CJ.


Date of Hearing : 9 August 2021
Date of Judgment: 27 August 2021


CITATION: Republic v SF


CATCHWORDS: “accused person”; “person accused of an offence” ; “arrest without warrant” ; “power to grant bail”; “power to release”; “power to remand ” ;“inconsistency” between provisions ; “any law must be read and applied subject to the provisions of the Act”


LEGISLATION: s. 270 Crimes Act 2016 ; ss. 19 & 21 Criminal Procedure Act 1972 ; ss.3(1)(a), 4, 4A, 9, 12, 17, 18, & 34 Bail Act 2018; ss.5 & 6 Child Protection & Welfare Act 2016; Articles 5(3), 10(2) & (3) Constitution ;


CASES REFERRED TO: R v Vito Denuga [2021] NRDC 10 ; Republic v Jeshua Agege [2021] NRSC 6


APPEARANCES:


Counsel for the Republic: R.Talasasa (DPP)
Counsel for the Respondent: R. Tagivakatini (PLD)

JUDGMENT


INTRODUCTION


  1. This is an appeal with leave against an EX-TEMPORE RULING ON BAIL delivered by the Resident Magistrate on 21 May 2021 refusing the application of the DPP for the further detention of the respondent ‘SF’ and instead releasing him on bail. The DPP seeks a judicial interpretation of the expressions “an accused person” and “person accused of an offence” as defined in s.3 of the Bail Act, 2018.
  2. ‘SF’ opposed the appeal and filed a cross-appeal against the “ultra vires” decision of the Resident Magistrate in entertaining the application of the DPP and also, for not differentiating between an arrested person and “an accused person”. ‘SF’ also challenges the power of the Resident Magistrate to remand or grant bail to a person who has been arrested by police but not charged with any offence.

BACKGROUND


  1. The respondent ‘SF’, is a 12 year old boy who was arrested from his home by police on the evening of Friday 14 May 2021 and was kept overnight in the office of the Domestic Violence Unit with his mother. On 15 May 2021 before the expiration of 24 hours, the DPP filed a Motion in the District Court purporting to invoke ss.12, 18 & 19 of the Bail Act 2018 read with section 270 of the Crimes Act 2016 which permits an arrest without warrant by a police officer.
  2. Despite ‘SF’s youth and contrary interest, the DPP sought ‘SF’s further detention at the Nauru Correctional Centre “until the conclusion of the case”. He also sought an order granting liberty to the police to bring ‘SF’ to the Police Station for the purpose of recording an interview and for conducting further investigations.
  3. The Motion for further detention was supported by an affidavit deposed by Police Inspector Sareima Aremwa. ‘SF’ was produced before the District Court within 24 hours of his arrest.
  4. In the affidavit, it is alleged that ‘‘SF’ ’ was seen “...half naked with his pants down to his knee and lying on top the victim who had her underwear up to her thighs...” by the victim’s older sister. The victim was medically examined and police are still awaiting the findings of the examination report. The Inspector deposes that based on the findings of the report police will be in a better position to determine the appropriate charge to be laid against ‘SF’. In particular, Inspector Aremwa deposed that offences under s.118 (“engaging in sexual activity”) and s.116 (“rape of child”) were under consideration at the time of ‘SF’s arrest.
  5. The DPP submitted in support of the application that besides the seriousness of the offending there is a “high risk” of retaliation against ‘‘SF’ ’ by the victim’s family. There is also a “strong public interest” and “a need to protect the community” (whatever that means in a case involving a child offender).

THE MAGISTRATE’S DECISION


  1. On 15 May 2021, the DPP filed a Motion in the District Court under ss.12 and 17 of the Bail Act 2018, for the further detention of ‘SF’. In doing so, he relied on the procedure the Magistrate had earlier propounded in R v Vito Denuga [2021] NRDC 10.
  2. Despite the reference to s.270 of the Crimes Act 2016 in the DPP’s Motion, the Magistrate in his decision states that power to arrest without warrant is set out in s.10 of Criminal Procedure Act 1972 (CPA) and s.19 deals with the “Disposal of person arrested by a police officer”. It provides inter alia that if the arresting officer refuses to grant bail then he must bring the arrested person before a police officer above the rank of sergeant to be dealt with.
  3. According to the learned Magistrate, the provisions of s.19 and the repealed s.21 of the CPA gave him power either to release or detain the arrested person and after the enactment of the Bail Act in 2018, that power has been reinstated under s.12 of the Bail Act. He also ruled that ss.17 to 20 under Part 5 of thl Act governs the grant of bail or to remand the arrested person.
  4. The learned Magistrate posed the following question in his ruling, namely : “Is a person who has been arrested without warrant but not charged entitled to bail? In answering the question the learned Magistrate refers to section 4(1) and the definition of an accused person in section 3 of the Bail Act.
  5. In analysing s.4(1) of the Bail Act, the learned Magistrate states that every “accused person” has a right to be released on bail. He interpreted the definition of ‘accused person’ and ‘person accused of an offence’ as if they were one and same person. In particular, the Magistrate said (at para 18) :

“Section 3(1)(a) of the Bail Act ..... requires that the person must be awaiting trial before the District Court. When the police arrest someone reasonably suspected of committing an offence, they have formed the intention or we can infer that they formed the intention to charge him and bring him to the District Court and eventually be tried. A person being arrested is therefore awaiting trial before the District Court, just as much as a person who has been charged is awaiting trial before the court. Both have a right to be bailed.”

(my highlighting)


  1. With respect, I disagree. It is highly unlikely that all arrested or suspected persons will be charged and/or will await trial. Indeed, there will be many suspects who may never get charged for any offence for example, where the DPP decides as a matter of discretion not to invoke the criminal law or prosecute or, if evidence against him/her is not sufficient to support a charge. In any case, before it can be said, that a suspect is awaiting or facing a trial, he must first be charged for an offence. In short, the inference concerning an arrested person is neither valid nor inevitable.
  2. The learned Magistrate emphasised that if police refuse to grant bail to an accused person, then s.12 of the Bail Act requires them to bring the accused person before a Court “within 24 hours of the arrest” to enable the Court to make “a decision on bail...” Again, this is only possible however, if the accused person has been or is charged.
  3. The learned Magistrate states that in making a decision on bail, the Court shall take into account the interests of the accused. Furthermore, ‘SF’ being a child, the application for his further detention will have to be determined in light of the provisions of the Child Protection and Welfare Act 2016 (CPWA). The relevant part of sections 5 & 6 reads :

5 Guiding Principles


(1) The core principle for administering this Act is that the safety, wellbeing and best

interests of a child are paramount.....


6 Application of this Act in relation to other laws


(1) Any law which relates to the rights of children, or which provides for processes

relevant to dealing with children in any manner and in any context, must be read and applied subject to the provisions of this Act, and in the event of any inconsistency between the provisions of this Act and of any other law, the provisions of this Act must prevail.”

(my highlighting)


  1. It is not disputed as incorrect or misguided, the learned Magistrate’s description of ‘SF’ or his best interest in the application, when he wrote:

“the accused person is a child of less than 13 years old with a small and frail stature. His physical, mental and moral maturity is likely to be far less developed than a child of 14 and much less than that of a 17 year old. Remanding the accused with other children whose ages, character and pre-dispositions are unknown poses an unacceptable risk to his physical, mental and moral well-being. There is the very real risk of bullying, sexual assault, and moral corruption to name a few threats. It is clearly in his best interest that he be not remanded”.


  1. The learned Magistrate ruled that the provisions of ss.5 and 6 of the CPWA “when applied to a bail determination, makes the safety, well-being and interest of the child accused paramount” and will have an overriding effect on the provisions of the Bail Act. The gist of his determination is that the CPWA requires him to consider the rights and welfare of ‘SF’ in considering the DPP’s application brought under the Bail Act and whether or not there is any inconsistency between the Acts.
  2. The Magistrate granted bail to ‘SF’ after taking into consideration ‘SF’s’ paramount interests as a child with particular regard to his physical safety, and psychological and moral welfare. The DPP’s application for further detention was accordingly refused.

THE APPEAL


  1. Aggrieved by the decision, the DPP appealed to this Court on the following grounds:

Ground 1


“That the learned Resident Magistrate erred in law when he applied Section 6 and/or Section 5 of the Child Protection and Welfare Act 2016 to supersede the application of Section 4A(a)(ii) of the Bail (Amendment) Act 2020 which lists the offence for which the respondent was arrested as ‘non-bailable’ or that bail shall not be granted for.”


Ground 2


“That the learned Resident Magistrate erred in law and fact when he stated as follows:


‘The provisions that govern the determination of bail in an application such as this one for the accused to be remanded is Part 5 of the Bail Act, being sections 17 to 20.’


In that the definition of an ‘accused’ in the Bail Act 2018 does not cover a person detained in the circumstances of this matter.”


DPP’S SUBMISSIONS


  1. As to Ground 1, DPP submitted:

“9. There is no inconsistency between the provisions of the Child Protection and Welfare Act 2016 and the Bail Act 2018, in particular, Section 6 and/or Section 5 of the Child

Protection and Welfare Act 2016 and Section 4A(a)(ii) of the Bail (Amendment) Act 2020.


10. The provisions of the Bail Act 2018 set outs the process by which matters of Bail are to

be dealt with.


  1. 11. ...........

12.The legislative context of the Bail Act 2018 should also be considered, as provided under Section 50 of the Interpretation Act 2011....

  1. The amendment to the Bail Act 2018 which brought about the section 4A category(list of non bailable offences) covered those offences that were to be non bailable. It is not all offences, in general but specific offences as listed.

  1. Therefore, section 4A is an automatic application.
  2. .......
  3. The principle of legislative supremacy is a paramount constitutional principle.
  4. Section 4A clearly provided the offences where bail shall not be granted.
  5. The court has a duty to interpret and apply the law as made by parliament.
  6. The interest of a child suspect who is detained is a matter that the appropriate authority

on the land will have to take into account when the child suspect is in detention.


  1. It is an error to state that Section 4A was inconsistent with the provisions of the Child Protection and Welfare Act 2016.”
  2. In summary, DPP submits there is no inconsistency between the Bail Act and the Child Protection and Welfare Act (CPWA). Furthermore, each Act deals with a different subject matter and the Bail (Amendment) Act 2020 was enacted four (4) years after the CPWA and being a special enactment (“specialis”), takes precedence over the more general CPWA (“generalis”). I agree that there is no identified inconsistency in the provisions but that does not prevent the Bail Act being “read and applied subject to the provision of the (CPWA)”.
  3. As for Ground 2, the DPP submitted :

“22. This ground is seeking an interpretation from this Court as to the definition of an ‘accused person’ in Section 3 of the Bail Act 2018.


23. Is a person who is arrested and is brought for further detention, an ‘accused person’, in the meaning set out in section 3?


24. Is that person ‘awaiting trial at the District Court’ when trial had not been set and the person had not been charged, either?


25. If the definition does not cover such a person, then an application for further detention

could only be made under Article 5(3) of the Constitution as read with either section 10

of the Criminal Procedure Act 1972 or Section 270 of the Crimes Act 2016.”


  1. Unfortunately the DPP’s submission does not propound an interpretation of s.3 which supports his application under the provisions of the Bail Act but whatever the meaning , the clear answer to the two (2) questions posed in the submission (above) is : “No”.

RESPONDENT’S SUBMISSIONS ON DPP’S APPEAL


  1. The respondent submitted as follows on Ground 2:

“13 (a) The Respondent concurs that that the learned Resident Magistrate erred in law

when he defined the Respondent as an ‘accused’ under Section 3 of the Bail Act

2018.


(b) Section 3 of the Bail Act 2018 requires the following to satisfy the definition of an

accused person:

(i) a person who has been arrested for an offence; or
(ii) a person charged with an offence ; and
(iii) who has been committed for trial in the District Court or Supreme Court ;

The Respondent was arrested for an offence under Part 7 of the Crimes Act 2016 but he had not been committed for trial in the District Court or Supreme Court. The Respondent therefore does not fall under the definition of accused person in the Bail Act
2018.


(c) It is submitted that the Respondent is a detainee as he had not been charged when the learned Resident Magistrate gave his Ruling.


(d) The matter of Republic v Jeshua Agege & ors. pronounced that a detained and

arrested person is not an ‘accused’ protected by Article 10(2) and (3).


(e) In the above Ruling, the Respondent cannot be considered an ‘accused’ and it is

incumbent upon the police and prosecution to invoke Article 5(3) of the Constitution, in

order to further detain the Respondent.


(f) We submit that this ground should succeed and implore this Honourable Court to

give directions on this issue for future reference.”


RESPONDENT CROSS-APPEAL & SUBMISSIONS


  1. In the cross-appeal, the respondent advances four (4) grounds of appeal and submission are as follows:

Ground 1


That the learned Resident Magistrate erred in law when he entertained the application for further detention under the Bail Act 2018 instead of dismissing the application.


“(a) The application by the Appellant before the learned Resident Magistrate was made

pursuant to the provisions of the Bail Act 2018. This reliance on the Bail Act 2018

overlooks the constitutional provision under Article 5(3).


(b) The matter of Republic v Jeshua Agege & Ors. has given guidelines on how an application for further detention should be made. The Bail Act 2018 and any amendments thereafter are incapable at this stage.


(c) We submit that the learned Resident Magistrate should not have entertained this
application under the Bail Act 2018 but to dismiss it for defectiveness.”

Ground 2


That the learned Resident Magistrate erred in law when he defined the juvenile as an “accused” pursuant to Section 3 of the Bail Act 2018.


“(a) The submission for Ground 2 are highlighted in Paragraph 13 of this submission.”
(see: as set out in para 24 above)

Ground 3


That the learned Resident Magistrate erred in law when he declared Section 18(4) of the Bail Act 2018 as the power of the court to ‘remand’ a person arrested by a police officer without a warrant and not yet charged.


“(a) This pronouncement by the learned Resident Magistrate was made on the premise that the Respondent was an accused person when the application for detention was made.


(b) It is submitted that the Respondent was not an accused person at that time. At its highest, the Respondent was a detainee, suspected of committing an offence. He was not awaiting trial in the District Court.

(c) The Court can only remand a person once a file (sic) or information has been filed.”


Ground 4


That the learned Resident Magistrate erred in law when he granted bail to the juvenile from police custody pursuant to the Bail Act 2018 instead of releasing him forthwith.


“(a) Following on from the arguments of the above grounds, it is submitted that the Bail Act 2018 did not apply to the Respondent during the application to extend detention.


(b) It is important to distinguish terms such as ‘detention’ , ‘remand’ , ‘released’ and ‘bail’ so as not to cause confusion. The above case authority of Republic v Jeshua Agege & Ors. does not make mention of the words ‘remand’ and ‘bail’ even once. This clearly shows that the Court has made the distinction and we seek that distinction be maintained throughout other cases.


(c) The proper way was to have released the Respondent forthwith instead of granting

bail.”


DPP’S SUBMISSIONS ON CROSS-APPEAL


  1. In reply to cross-appeal, the DPP submits as follows :

Ground 1


“(3) If this court interprets the word ‘accused’ as sought in our Appeal Ground 2, then the Bail Act 2018 including all its subsequent amendments will not apply to an application as this, in the court below.


(4) The proper process is under Article 5(3) of the Constitution as read with section 10 of the Criminal Procedure Act 1972 or Section 270 of the Crimes Act 2016.”


Ground 2


“(5) This is noted but the terms are used interchangeably.”


Ground 3


“(6) It is submitted that as was raised in our Appeal Ground 2, if the interpretation of the word, accused does not include a person who has not been charged then the provisions of the Bail Act 2018 will not apply.”


Ground 4


“(7) When considering the application, the Resident Magistrate was entitled to determine whether or not to release the suspect.


(8) This Court ruled in Republic v Jeshua Agege that where a constitutional application is made the process should be as follows:


(i) An application is filed by the applicant ; and
(ii) Supported by an affidavit.

(9) The other matters referred to by this Court in Jeshua Agege are noted.

Section 28 and 29 of the Supreme Court Act 2018 sets out the process by which this is to be done.”


ANALYSIS & DECISION


  1. At the hearing of the appeal, the DPP stated in open court that he no longer wished to pursue Ground (1). Accordingly, the Court need not concern itself with Ground 1 except to observe that, although Parliament undoubtedly is supreme within its sphere of activity it is nevertheless, subject to the Constitution which is “the supreme law of Nauru and any inconsistent law is void to the extent of the inconsistency.”

APPEAL ISSUES


  1. The grounds submitted by the appellant and the respondent in their respective appeal and cross-appeal raises the following issues for determination :

FIRST ISSUE


  1. The relevant definition in s.3 of the Bail Act 2018 reads :

‘accused person’ or ‘person accused of an offence’ means a perho has been arre arrested for, or charged with , aencefence and –


(a) who is awaiting trial before the Dis Cour>


p>(b) who has been committed for trial rial before the Supreme Court;


(c) whose trial has been adjourned;


(d) who has been convicted and –

(i) who has been committed for sentence;

(ii) whose case has been adjourned for sentence;

(iii) who is appealing against conviction or sentence; or

(iv) whose conviction or sentence is stayed;


(e) who is under arrest for a breach of bail or a breach of a bail condition;

or

(f) who has applied for a writ of habeas corpus”

(my reformatting for clarity)


  1. It is immediately obvious from a careful reading of the opening words of the definition that it defines and deals with two (2) types of “persons” namely :
    • (a) a person who has been arrested for an offence (“ person accused of an offence”) and
    • (b) a person who has been charged with an offence (“accused person”)
  2. A closer reading of the definition discloses the following features:
    • the definition is exclusive and does not provide any room for expansion and extension by using a word such as “includes” ;
    • paras (a) to (c) deals with persons awaiting their trial or actually being on trial ;
    • paras (d)(i) to (iv) deals with convicted and/or sentenced persons ;
    • para (e) deals with bailed persons ;
    • para (f) deals with detained persons
    • there is a clear separation (“or”) between paras (a) to (e) and para (f) ;

In the Court’s view, paras (a) to (e) can only apply to a person who has already been charged, and para (f) applies to an arrested person who is held in detention or custody without being charged.


  1. The helpful punctuation employed in the definition also assists in its construction and meaning. It comprises two (2) “commas” (,) and a “hypen” (-) at the end of the opening words. There is also a disjunctive (“or”) which separates an “arrested ” person from a “charged ” person reinforced by the presence of the first comma after the word “for” and, finally, the opening words ends with the conjunctive (“and ”) before the hypen.
  2. In the Court’s view the conjunctive “ and ” at the end of the opening words relates only to a “ charged ” person and not to an “ arrested ” person. This distinction is reinforced by the location of the second comma after the word “with” whereas, it could have been after the word “offence” in which latter case, the “and ” at the end, would refer back to both types of “persons” dealt with in the definition.
  3. Separating out the two (2) “persons” and adding the applicable paragraphs, the definitions would read :
    • (1) A “person who has been arrested for an offence” and -

(f) who has applied for a writ of habeas corpus.”


and the second part of the definition would be :

(2) A “person who has been charged with an offence” and -

(a) who is awaiting trial before the District Court;

(b) who has been committed for trial before the Supreme Court;

(c) whose trial has been adjourned;

(d) who has been convicted and –

(i) who has been committed for sentence;

(ii) whose case has been adjourned for sentence;

(iii) who is appealing against conviction or sentence; or

(iv) whose conviction or sentence is stayed;

(e) who is under arrest for a breach of bail or a breach of a bail condition;


  1. Needless to say a person who has been “charged with an offence” and awaiting trial would already have appeared in court and would either be on bail or would be eligible for bail and therefore is unlikely to apply for a writ of “habeas corpus” which would be the primary concern of “a person accused (or arrested) for an offence”.
  2. In light of the foregoing, a person who has been arrested on suspicion or who is merely detained for further investigation is not an “accused person” in terms of the definition in s.3 of the Bail Act 2018.

SECOND ISSUE


  • Whether a person who is arrested and/or detained but not yet charged for an offence, can be bailed or remanded under the Bail Act 2018 ?
  1. This issue in turn raises two (2) questions - The first, concerns the power to remand an accused person and the second, concerns the power to grant him bail. The power to grant bail by the police and the Court arises out of ss. 9 & 12 of the Bail Act 2018, however, the power to remand lies exclusively with the Court.
  2. The right of an accused person to be released on bail is recognised in Section 4(1) of the Bail (Amendment) Act 2020 which provides :

4 Entitlement to Bail


&; (1) Subject to the provisions of this Act, every accy accused perso a as a right to be released

on bail21;


  1. Section 9 then auths Police to grant bail. The. The section reads :
    1. Authority for Police to grant bail

“(1) Subject to subsection (2), if a person is arrested for a cognizable offence and taken to
a police station, a police officer may grant bail to the accused person.


(2) A police officer shall not grant bail to a person accused of an offence if:

(a) .....(inapplicable).....;

(b) .....(inapplicable).....;

(c) the offence is a serious one.


(3) A police officer may release a person arrested on suspicion that he or she has

committed an offence where, after due police enquiry, insufficient evidence is

disclosed.”


For completeness, a “serious offence” is defined in the Bail Act as : “ ...an offence for which the maximum penalty includes imprisonment for 3 years or more” which effectively excludes all offences under the Crimes Act.


  1. In s.9(1) of the Bail Act, the power of the police to grant bail is clear. Likewise, s.9(3) authorises the police officer “to release” a person arrested on suspicion. There is a clear distinction between cases when bail can be granted and when a person will be released. S.9(3) states when there is “insufficient evidence disclosed ” against the arrested person, he is entitled to be released from custody.
  2. Parliament in enacting s.9 has purposely chosen the word “release” where there is insufficient evidence against the suspected person. Interestingly, in section 9(1) and 9(2) the arrested person is also referred to as an “accused person” however, in 9(3) he is referred to as “a person arrested on suspicion”. In short, the section differentiates between the rights of an arrested person who is also treated as an “accused person” from that of a person arrested on suspicion.
  3. Section 12 of the Bail Act 2018 provides :

12 Procedure to be followed bice officers if bail not granted


“ If an accused person is refs refused bail by a police officer, the police officer who refused bail or another police officer of equal or superior rank shall, as soon as practicable, and in any event within 24 hours, bring the person before a court for a decision on bail by the court.”


  1. Clearly, section 12 gives a Court power to make a decision on bail if police have refused bail to an “accused person”. As already determined under the FIRST ISSUE, a person who is arrested on suspicion or who has been detained by police without warrant is not an “accused person” within the definition of the Bail Act in so far as he is not a person who has been charged and is awaiting trial. Furthermore, no-where in the Bail Act can a suspected person be granted bail by the Court.
  2. Accordingly, a person who has been arrested or detained cannot be remanded unless and until after he has been charged with an offence. Similarly, a person is not required to seek bail if he has been detained on suspicion and he can only be released if no sufficient or prima facie evidence is disclosed against him after inquiry by the police or the Court.

THIRD ISSUE


  • Whether the procedure set out in Republic v Vito Denuga [2021] NRDC 10 needs to be reconsidered?
  1. In light of the Court’s interpretation and construction of the phrases “accused person” and “person accused of an offence” in the definition section of the Bail Act, the District Court has power to deal only with the former on the basis of a formal or holding charge having first been laid against the accused person.
  2. In the absence of a charge, the District Court has no power to deal with a person who is merely “accused of an offence”, and accordingly some of the learned Magistrate’s statements in paras 16, 17, & 18 in Republic v Vito Denuga [2021] NRDC 10 must be considered as “obiter dicta” and given “per incuriam” after the judgment of this Court in Republic v Jeshua Agege [2021] NRSC 6.
  3. The decision in Republic v Vito Denuga [2021] NRDC 10 should not be relied upon in future applications for further detention of an arrested person in the absence of a formal charge which would obviate such an application and trigger the provisions of ss.4 and 13 of the Bail (Amendment) Act 2020.
  4. The appeal and cross-appeal are allowed. The learned Magistrates ruling is quashed as is the order granting bail to SF who is ordered to be released forthwith.

Dated the 27th day of August 2021


_________________

D.V.FATIAKI

CHIEF JUSTICE

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