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Denuga v Republic [2021] NRSC 50; Criminal Appeal 5 of 2021 (14 December 2021)

IN THE SUPREME COURT OF NAURU APPEAL CASE NO. 5 OF 2021

AT YAREN District Court Case No. 38 of 2020

APPELLATE JURISDICTION

BETWEEN

LOCKLEY DENUGA Appellant

AND

The Republic Respondent

Before: Khan, J
Date of Hearing: 29 November 2021, 10 and 13 December 2021
Date of Ruling: 14 December 2021

Case is to be known as: Denuga v The Republic

CATCHWORDS: Bail – Bail pending appeal – Bail Act 2018 – section 17(3) – likelihood of success, time when appeal will be heard and the portion of sentence that would be served – All conditions have to be met before bail pending appeal can be granted.

APPEARANCES:

Counsel for the Apellant: V Clodumar
Counsel for the Respondent: S Shah

RULING

INTRODUCTION

1. On 13 August 2021 the appellant was found guilty by Magistrate Lomaloma for the offence of causing harm to a police officer (count one) contrary to s.77 of the Crimes Act (the Act) and obstructing a police official (count two) contrary to s.242 of the Act.
   
2. The appellant was sentenced to a term of 13 months imprisonment for count one and 6 months imprisonment for count two. It was ordered that both sentences were to be served concurrently with each other. The sentencing has the date of 13 August 2021 as well.
   
3. The appellant filed his grounds of appeal on 23 September 2021.
   
4. On 10 November 2021 the appellant filed an application for bail pending appeal and in dealing with that application some confusion arose as to whether the appeal was out of time. Both counsels including myself were of the view that the date of sentence was 13 August 2021, as that was date stated in the sentence, and therefore the appeal was out of time which prompted Mr Clodumar to file an application on 6 December 2021 for extension of time to file the appeal.
   
5. When I was writing my ruling, I perused the District Court file and noticed that the sentence was delivered on 10 September 2021 and I called this matter on 13 December 2021 to seek clarifications from both counsels and they agreed that the sentence was indeed delivered on 10 September 2021 and therefore the appeal was filed within time. I will therefore deal with the application for bail pending appeal only.
   

BAIL PENDING APPEAL

6. On 10 November 2021 the appellant filed an application for bail pending appeal. Mr Clodumar submitted that by the time the appeal will be heard, the appellant would have served most if not all his sentence. He further submitted that under s.50 of the Supreme Court Act 2018 the Registrar is obliged to set the appeal for hearing within 42 days of the filing of the appeal, and that the transcript is not ready as yet and the appeal could not be heard this year as we are only a few days away from legal vacation.
   
7. Mr Shah opposed the application for bail pending appeal and submitted that if the appeal is heard by February, then the appellant would have only served 6 months out of the 13 months sentence.
   
8. Mr Clodumar submitted that s.17(3) of the Bail Act 2018 the matters to be taken into consideration in determining the application for bail are threefold namely:
   
   1. Likelihood of success;
      
   2. Time before appeal would be heard;
      
   3. Proportion of sentence that would be served before appeal is heard.
      
9. The appellant’s main ground of appeal is that the Magistrate erred in finding that he was lawfully arrested by the police.
   
10. In determining as to whether the arrest was made the Magistrate in his judgement stated as follows at [44], [45] and [49];
    

Issue: When was arrest made?

[44] Section 11 of the Criminal Procedure Act states how an arrest is to be made:

11. Mode of Making Arrest
    
    1. In making an arrest the person making an arrest it shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action.
       

[45] PC Bugia Bill had put his hand firmly on the accused and told him that he was taking him to the police station and by that he meant that the accused was under arrest. The arrest was made at that point.

[49] In the circumstances pertaining before and at the arrest, I find there was no need to tell the accused why he was being arrested.

11. Mr Clodumar submits that the Magistrate’s finding is directly in conflict with Article 5(2) of the Constitution which states:
    
    2. A person who is arrested or detained shall be informed promptly of the reasons for the arrest or detention and shall be permitted to consult in the place in which he is detained a legal representative of his own choice. (Emphasis added)
       

Mr Clodumar submits that the appellant has a strong chance of success as his arrest was unlawful.

12. On the basis of Mr Clodumar’s submissions I am satisfied that the appellant has strong likelihood of success in the appeal and with the cases currently before the Court it is unlikely that this appeal will be heard before April or May 2022 and by then the appellant would have served most if not all of his sentence.
    

CONCLUSION

13. In the circumstances the appellant is granted bail pending appeal and he is to enter into bail in the sum of $500 in his recognisance to attend Court when required to do so.
    

DATED this 14 day of December 2021

Mohammed Shafiullah Khan
Acting Chief Justice