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Mau v Republic [2022] NRSC 2; Criminal Case 3 of 2021 (13 January 2022)

IN THE SUPREME COURT OF NAURU Criminal Case No. 3 of 2021

AT YAREN

CRIMINAL JURISDICTION

BETWEEN

UAM MAU Applicant

AND

THE REPUBLIC Respondent

Before: Khan, ACJ
Date of Hearing: 30 December 2021
Date of Ruling: 13 January 2022

Case to be referred to as: Mau v The Republic

CATCHWORDS: Bail application – Section 4(5) of Bail (Amendment) Act 2020 – Where trial not commenced within 3 months – Bail granted.

APPEARANCES:

Counsel for the Applicant: V Clodumar
Counsel for the Respondent: Miss Puleiwai

RULING

INTRODUCTION

1. The defendant is charged with the following offences:
   

FIRST COUNT

STATEMENT OF OFFENCE

Attempted murder: Contrary to section 55A of Crimes Act 2016.

PARTICULARS OF OFFENCE

Uam Mau on 9^th February 2021, in Nauru, drove vehicle registration No. TT1192 and hit the motorcycle that was driven by Rajeshkumar Ragagopa, an act which was capable of or likely to endanger human life.

ALTERNATIVE COUNT TO FIRST COUNT

STATEMENT OF OFFENCE

Dangerous driving occasioning grievous bodily harm: Contrary to section 67B(1)(b) and (ii) of the Motor Traffic (Amendment) Act 2016.

PARTICULARS OF OFFENCE

Uam Mau on 9^th February 2021, in Nauru, drove a motor vehicle registration No. TT1192 in a manner that was dangerous to another person or persons and caused an impact on the motorcycle that was driven by Rajeshkumar Ragagopa and the impact occasioned grievous bodily harm to Rajeshkumar Ragagopa.

2. The defendant first appeared before this court on 13 March 2021 and prior to that he appeared before the District Court on 19 February 2021 when he was remanded in custody to allow the police to carry out further investigations. On 26 February 2021 he was formally charged with the offence of attempted murder and intentionally causing harm (count two) and was remanded in custody to appear before this Court on 12 March 2021.
   
3. On 26 March 2021 the prosecution amended the charge on Count Two and filed the alternative count of dangerous driving occasioning grievous bodily harm (Alternative Count).
   
4. On 9 April 2021 the defendant appeared before Fatiaki CJ (Chief Justice) and pleaded not guilty to count one and guilty to the alternative count and was further remanded in custody and still continues to do so.
   
5. After the guilty plea on 9 April 2021 his counsel made an application that the fact that he pleaded guilty to the alternative count, count one should be withdrawn and he should be sentenced on the alternative count.
   
6. At the time of offending the defendant was in company of another person namely Jeshua Agege who was charged separately in Criminal Case No. 6 of 2021 with the offence of attempted murder and alternative counts of intentionally causing harm and common assault.
   
7. On 14 September 2021 the prosecution made an application for consolidation of the information in this case and Case No. 6 of 2021.
   
8. On 7 October 2021 the Chief Justice delivered a ruling in Republic v Jeshua Agege and Mau^[1] on the application for consolidation as well as the issue of guilty plea on the alternative count and rejected both applications.
   
9. In relation to the issue of guilty plea and the consolidation of the charges, the Chief Justice stated at [37] and [52] respectively as follows:
   

[37] For the foregoing reasons, the application by defence counsel to proceed with UM’s guilty plea on the alternative count 2 is dismissed and adjourned until Count One – Attempted Murder has been dealt with.

[52] Accordingly and for the foregoing reasons the application to consolidate the two informations and try them together in one trial was refused.

BAIL APPLICATION

10. The bail application was filed on 17 September 2021 and was not dealt with by the Chief Justice and he went on leave on 20 November 2021 and therefore this matter was called before me on 9 December 2021.
    
11. The defendant has been in custody in excess of 10 months and is subject to the provisions of section 4B(5) of the Bail (Amendment) Act 2020 which states:
    

(5) An accused person, who is remanded in custody under this Section, may apply for bail on any grounds or reasons, other than exceptional circumstances under subsection (1), where the trial for the offence he or she is charged with has not commenced within 3 months of the date on which the information or charged was filed in Court.

12. The applicant in his affidavit states that he is 19 years old, a first offender and lives with his mother and sister and was employed as a security officer at the time of the alleged offending.
    
13. The respondent filed an affidavit of Senior Const Valdon Dageago on 16 December 2021 in which he deposed that bail will be objected to; that prosecution will consider withdrawing count one and accepting the plea on the alternative count and wanted the matter to be finalised by of sentencing on the alternative count. However, on 30 December 2021 Miss Puleiwai advised the court that the prosecution will still proceed with count one (attempted murder) which is consistent with the ruling delivered by the Chief Justice on 7 October 2021.
    
14. I should interpose here and state Jeshua Agege’s bail application was heard on 29 March 2021 and in the ruling delivered by the Chief Justice on 16 April 2021 he stated that his likely acquittal constituted “exceptional circumstances” but bail was refused because of witness tampering. However, he was granted bail on 9 June 2021 on the basis of 3-month rule enunciated by the Chief Justice in the case of Republic v Agege and Others^[2].
    
15. Miss Puleiwai’s basis for objecting to bail notwithstanding that trial has not commenced within 3 months as required by section 5B(3) is that if the applicant is granted bail there is a high likelihood of interference with the prosecution witnesses. There is no evidence that the accused has interfered with any witnesses either directly or indirectly whilst he was remanded in custody unlike Jeshua Agege who was alleged to have interfered with an unnamed witness and the Chief Justice stated at [25] as follows:
    

[25] The officer also deposed that the police were investigating an allegation of attempted interference or tampering by the defendant with an unnamed prosecution witness. In particular ‘... the application called a witness and accused him for mentioning his name to the police. This information was recorded and posted on Facebook Messenger.’ This later statement is not denied by the respondent nor did the defence counsel ask to cross examine the Snr Constable on his bald claims.

CONSIDERATION

16. Both Jeshua Agege and the applicant are charged with almost identical offences and in my view, it is unfair that one was granted bail on the basis of the 3-month rule while the applicant has continued to be in custody.
    
17. The applicant has already spent a period of 10 months in custody and it is unknown as to when his trial will commence on count one and is granted bail on the following conditions:
    
    1. Bail in the sum of $500 in his own recognisance with a surety in the like sum;
       
    2. Not to interfere or approach directly or indirectly any prosecution witnesses;
       
    100. Report once weekly to police station every Wednesday between 9am to 4pm;
         
    4. Surrender all travel documents to the Court;
       
    5. Reside with his mother at Anetam District and not change address without the leave of the Court;
       
    6. Not to be arrested or charged with any other offence;
       
    7. Appear for his trial if and when informed by his counsel.
       

DATED this 13 day of January 2022

Mohammed Shafiullah Khan
Acting Chief Justice

^[1] Miscellaneous Application No. 7 of 2021 for consolidation of Criminal Case Nos 3 of 2021 and 6 of 2021
^[2] [2021] NRSC 13; Criminal Case No. 23 of 2020 (5 March 2021)