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IN THE SUPREME COURT OF NAURU
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 1/98
RENE HARRIS v DIRECTOR OF PUBLIC
PROSECUTIONS
CRIMINAL APPEAL NO. 2/98
MILTON DUBE v DIRECTOR OF PUBLIC
PROSECUTIONS
CRIMINAL APPEAL NO. 3/98
DIRECTOR OF PUBLIC PROSECUTIONS v RENE
HARRIS
CRIMINAL APPEAL NO. 4/98
DIRECTOR OF PUBLIC PROSECUTIONS v MILTON
DUBE
CRIMINAL APPEAL NO. 5 /98
DIRECTOR OF PUBLIC PROSECUTIONS v MELVIN
DUBE
Date of hearing: 14.8.98
Date of Decision:
7.09.98
D. Aingimea for Appellants Harris & Dube
Mrs. Deo for
Director of Public Prosecutions
JUDGMENT OF DONNE C.J.
The appeals were lodged:
1. Appeals by Mr Harris and Mr Milton Dube on points of law.
2. Appeals by the Director of Public Prosecutions against the sentences in respect of the charges against Mr. Harris, Mr Milton Dube and Mr. Melvin Dube.
The appeals were heard together. Lengthy written
submissions were, before the hearing, filed by Counsel for the Director of
Public
Prosecutions. I did not read them before the hearing. The practice of
this Court is that written submissions can, by leave of the
Court, be filed at
the hearing or subsequent thereto. There is no pre-emptive right of any party to
make known to the Court before
a cause is heard, the case to be presented by
that party. Should all parties involved in the proceedings desire to adopt a
procedure
not in accord with this, the approval of the Court first be
obtained.
I have considered the notes of evidence and the submissions of
counsel. I have read the decision of the learned Magistrate. It is
comprehensive
and thorough. There were, in fact, no challenge as to the findings of fact
therein and having read the evidence I would
comment that this is
understandable.
APPEALS ON
POINT OF LAW
The appellant offenders base their appeals on four
points.
They argue:
1. The charge of aiding prisoners to escape laid under section 142 of the Criminal Code Act cannot in law be sustained on the evidence.
2. The charge of serious assault laid under S. 340(2) of the Code cannot be sustained in law on the evidence.
3. The learned Magistrate wrongly placed the burden of proving that all prisoners were not in lawful custody.
4. The charge of riot laid under S. 63 of the Code could not be sustained in law on the evidence.
As to the first ground, Mr
Aingimea argues that the prisoners did not escape, but were released by the
Police.
The learned Magistrate in his judgment at pp. 28 and 29 found as
follows:
"It is pointed out by the learned Defence Counsel that in this case it was the decision of the police officer themselves (sic) that Tawaki Kam be released. He specifically refers to the statement of PW 3 Curtis Olsson who admitted that he gave the instructions to release the detainees. It is submitted by the learned Counsel that there was no legal justification to keep the detainees in custody. I have carefully considered this argument. I do not find any merit in the same. We have to see the totality of circumstances in order to find if the police officer made a decision of his own or he was compelled by force to take this decision. We cannot lose sight of the fact that Melvin was smashing desk. The police officer was asking the accused to wait so that he may contact the Director of Police. There was struggle with the telephone. Melvin Dube also placed against the head of Ivan Notte and spat at his face. Milton Dube was also armed with grass cutter close by. When all the circumstances are taken together, there remains no manner of doubt that the police officers were forced to release the detainees on fear of physical harm and the normal procedure of release of a detainee or prisoner was not allowed to prevail. It will be seen that Tawaki and his two brothers were taken away without undergoing formalities of entering a recognizance or surety bonds. I hold that the accused in fact paralysed the normal police functioning in the Police Station and forcibly obtained the release of the detainees."
On
the evidence the Magistrate’s finding was justified and I can find no
fault with his conclusions.
Ancillary to his argument under this ground,
counsel referred to case of
R v Scott
[1967] V.R. 276 to support a contention that if the prisoner who escapes did not
intend to escape, the one who helped his escape
cannot be charged with the
offence of aiding his escape. The question of "mens rea" of the prisoners is
irrelevant. It is the "mens
rea" of those who aid that is relevant. I am
satisfied on the evidence, as was the Magistrate, that the Appellants intended
to aid
the escape of at least Tawaki. Their purpose in going to the Police
Station is abundantly clear.
A further point was pressed by the
Appellants. They submit Tawaki was not in lawful custody.
The Magistrate
has found Tawaki was arrested before was taken to the Police Station. He was
thus in lawful custody when escaping.
Furthermore, the Magistrate did not accept
that the Appellants believed Tawaki’s arrest was unlawful. He also
correctly held
that for the purposes of the charge in question if one prisoner
was proven to be in lawful custody, the offence is complete in relation
to
him.
As to ground 2, the submission is that there is no evidence to
sustain a charge under section 340(2) of the Code which reads:
Serious Assault
"340 Any person who
(2) Assaults, resists or wilfully obstructs any person engaged in the lawful execution of his duty; or any person acting in aid of a police officer while so acting" (commits the offence)
The
Magistrate in his judgment has covered comprehensively the conduct of the
Appellants. The evidence shows the conduct of Mr Harris
to be threatening and
intimidating. He organized his support team which he brought with him armed with
grass cutters to back up his
confrontation with the Police Officers there. This
action without doubt, allows the conclusion of the Magistrate that it
collectively
constituted wilful obstruction by all parties to the Police
Officers in the course of their duty. The charge was clearly
sustainable.
The plea of rescue was advanced by the Appellants. "Rescue"
as used in criminal law is an offence. It consists in the forcible freeing
of a
person from lawful arrest or custody. It incurs criminal liability (sec. 141).
There was no unlawful arrest in this case. It
is doubtful that even if the
arrest were unlawful, the Appellants’ conduct as so called "rescuers"
could be justified. Their
conduct was aimed at Police Officers lawfully on duty
at the Police Station.
As to ground 3, the Appellants point to the
Magistrate’s judgment at pp 17 and 18 which they say, wrongly places the
burden
of proof on the Appellants suggesting they should have established by
cross-examination of the prosecution’s witnesses that
all three prisoners
were not in lawful custody. That seems to be a correct interpretation of what
was said. Of course, the burden
is on the prosecution to prove custody and it is
not the duty of the accused by his own examination to prove the contrary.
However,
in the end result the point loses relevance since Tawaki was clearly
proven by the prosecution’s evidence to be in lawful custody
and, as has
been pointed out, that finding is sufficient to inculpate the
Appellants.
The final ground (4) of the appeal relates to the conviction
of the Appellants on the charge of riot. Mr Aingimea submits that all
Mr Harris
was doing was arguing with the police - he was acting in a peaceful manner. The
whole incident has to be considered to
decide whether in fact there can be
established in law in offence of "riot". The learned Magistrate sums up the
evidence he heard
on this incident and the conclusions he arrived at on it. He
says at pp. 31-33:
"It is now to be seen if the three accused did constitute unlawful assembly. Reference can be made to Section 61 of the Criminal Code where unlawful assembly has been defined. The requisite ingredients of an unlawful assembly are:
1. Assembly of three or more persons.
2. Intention to carry out some purpose which is common.
3. Conducting in such a manner, as to cause persons in the neighbourhood to fear that persons so assembled will tumultuously disturb the peace or such assembly needlessly and without any reasonably occasion provoke other persons tumultuously to disturb the peace.
It is not necessary that the original assembling was lawful. It will become unlawful if the persons start conducting in the above manner. Such as assembly becomes a riot when it begins to act in so tumultuous manner that the peace is disturbed.
When the circumstances of the present case are appreciated in the total context, there remains no manner of doubt that all the ingredients to constitute an unlawful assembly are proved. The common purpose is clearly established. The number of persons who entered the Police Station happens to be three. Two of the accused had armed themselves. The police officials were threatened to get the release of Tawaki Kam. There was smashing and banging of the desk with weapons. The whole peace of the Police Station and its functioning was disturbed. The assembly did turn into a riot when the peace of the Police Station was disturbed. Mr David Aingimea submits that Mr Rene Harris was only arguing with the police officials and he was to have the release of Tawaki Kam in a peaceful manner. This argument cannot be accepted when we notice the determination of the accused, their preparation and conducting after coming to the Police Station where there was clear exhibition of force and violence by the two companions of Mr Harris. It is true that three of their companions remained outside the Police Station throughout. This fact will not alter the situation in any manner, it was pointed out that PW12 Rayong Itsmaera while describing the situation maintained in cross-examination that from his house some sort of commotion is noticed in the Police Station from time to time in the ordinary course and this being so it cannot be said that the peace was disturbed tumultuously. It may be noticed here that the other witnesses PW13 Ms Clarinda Olsson stated that the commotion which she observed that day was abnormal. Mr David Aingimea tries to treat this case as a case where the disturbance of peace by such an assembly takes place away from the Police Station in some public place or street. Here is a case where the Police Station which is expected to maintain peace elsewhere was itself disturbed in such a manner that its functioning came to a stand still and paralyzed. The policemen themselves became frightened and helpless. It is a clear case of an unlawful assembly and riot in a Police Station itself, unlike other cases when generally such offences are committed away from the Police Station."
I
have no hesitation that on the facts, as found, the Magistrate has applied the
correct principles of law and has properly found
the offence of "riot" sustained
in respect of the defendants.
In the result I dismiss the Appeals of Mr
Harris and Mr Milton Dube.
THE
APPEAL AGAINST SENTENCE.
The Director of Public Prosecutions
appeals against all sentences imposed on the grounds of their
inadequacy.
In support of the appeals, Mrs Deo who appears for the
Director stresses, in the main, the gravity of all the charges, the necessity
in
the public interest for deterrent sentences to indicate to all that the conduct
manifested by the accused cannot be condoned and
will not be tolerated in Nauru.
She urges that for at least the offences of aiding the escape of prisoners, riot
and serious assault
imprisonment must be the only option available to the Court.
The nub of her plea is that apart from the penalties of lengthy imprisonment
fixed by the law, that imprisonment would rightly indicate the seriousness of
the crimes committed, to the offenders, who by virtue
of their positions of
standing in the Community and their status as Community Leaders, need to be
dealt with in a way to indicate
what she calls "the equality of law". In
particular, she underscores the position held by Mr Harris, a Member of
Parliament at the
time he offended. She submits that the Magistrate wrongly gave
favourable consideration to that fact and in general to the standing
and public
service of all offenders to mitigate the penalties. Counsel’s view is that
the Court should have approached the
task of sentencing on the basis that the
greater the status and standing of the offenders, the harsher the
sentence.
Undoubtedly the offences were serious and there is no question
the offenders, by virtue of their background, should never have embarked
upon
what was clearly an attack on the law enforcement processes of Nauru. Even if
they did believe Tawaki was unlawfully arrested
(and I am satisfied they did
not), as educated Nauruans, they know or ought to have known that the remedy for
any unlawful arrest
is to resort to the due process of law and certainty not to
the "bully boy" and intimidating tactics they resorted to. The learned
Magistrate has justly condemned them.
Before I consider any review of
sentences, I would advert to the submission by Mrs Deo that the learned
Magistrate misdirected himself
in not ascertaining whether any accused had
previous criminal history. That submission is misconceived. The obligation to
make known
to the Court any such history lies firmly on the prosecution. The
clear duty of the prosecution is, after the Court finds an accused
guilty of an
offence, to bring to the attention of the Court any previous convictions of the
offender who is then asked if he admits
them. If in fact, that procedure was not
followed in these cases, then it is the prosecutor who is wrong not the
Magistrate. I should
add that if a Probation Officer's Report is ordered, it is,
quite proper for the Probation Officer to be advised by the prosecution
of the
previous history of an offender. That information will be included in the report
which can be challenged by the accused when
it is made available to
him.
I now turn to the consideration of the sentences. The burden is on
the Appellant to establish that the sentence appealed against is
manifestly
wrong. In that respect, the task of the appellate Judge is not to weigh the
sentence imposed against what he, in the circumstances
may have imposed - it is
not a balancing of opinions. Sentencing is a discretionary process. An appellate
Judge before he interferes
with the sentence of the trial judge must be
satisfied that it is either out of line with the general trend of sentences in
similar
cases, or there is no comparable guide, that the sentencing Judge who
had the benefit of conducting the trial and had experienced
the impact of it,
could not have, in any circumstances, imposed the sentence he did - in other
words, he was manifestly wrong.
I have referred to sentences for serious
offences imposed in other jurisdictions. Some of the decisions set out the
principles applicable
in the sentencing process. They are, in general, of little
assistance since sentencing policies and the quantum of any sentence in
any
country must relate to the culture of the country, its degree of development,
its penal policy and the prevalence of crime therein.
Consequently, it is more
appropriate for reference to be made to local decisions. In this instance, one
decision of the Supreme Court
was referred to, but it did not assist.
The
learned Magistrate on sentencing said:
"....it will appear that Tawaki Kam was not just a member of the Constituency for whose release Mr. Harris was anxious. In fact, he was husband of his niece and a close relative......."
"I have given my serious thought to these submissions. In the ordinary course, the offences under Sections 142 and 340(2) have to be treated very seriously, especially when such an incident takes place in a Police Station and the police officers themselves become victims at the hands of the accused. At the same time, I am conscious of the entire background in which the incident took place. This is a case where a little more tact on the part of concerned police officers and a little more patience on the part of the accused could have averted the entire unpleasantness and pain which has been caused to the police officers. I feel that there has been a mishandling of the situation on the part of the concerned police officials and also Mr Harris. Mr. Rene Harris has been a Member of Parliament for many years and even now he is a member of the present Parliament.
The purpose of punishment is really to reform a wrong doer, if possible, and to restore order and discipline in society, and in the present case I am satisfied that all the three accused can be reformed to show proper conduct in the future.
Keeping in view Mr Rene Harris’ status and long public service as a Member of Parliament, I feel that sentence of imprisonment is not indicated. I further find that Milton Dube, who is also having a status of his own, and Melvin Dube, in fact, acted on the advice of Rene Harris and who himself may have been under a wrong impression that he was acting rightly within the law. In view of this, it will not be proper to impose any sentence of imprisonment in respect of these two accused as well."
Mrs Deo
strongly submits that the factors taken by the Magistrate on matters to mitigate
the penalties were not mitigatory but rather
were matters of aggravation. She
says that retribution should have been the main aim of the sentences not
reformation.
Certainly, in the case of serious offences such as these
here, the starting point in the consideration of the quantum of the punishment
must be that of imprisonment. The Magistrate had obviously imprisonment in mind.
However our penal policy, as in all countries with
a system of Justice similar
to that of Nauru, is aimed at keeping people out of prison. Reformation not
retribution is the prime
object in sentencing. Mitigating circumstances
pertinent to an offender are always a major factor to be weighed in
sentencing.
Counsel in pressing her plea for imprisonment, makes a strong
submission thereon in the case of the offender Harris. She describes
him as the
"instigating party" of the riot giving the other offenders the impetus to carry
on the tumult that occurred; he was, she
submitted, the group leader and he
should be imprisoned. She submits that the leniency shown to him would allow a
perception to be
held by the public that a Member of Parliament is in better
position from the Court’s perspective to receive a lighter punishment
than
the "less privileged". A reading of the Magistrate’s reason could not
allow such a conclusion. His approach to the task
of sentencing is clearly the
correct one and there could be no justification for any wrong perception.
However it can justifiably
be contended there is a reason for the public to
perceive that Mr Harris in offending in the manner detailed in the judgment,
possessed
a totally erroneous idea of his powers as a Member of Parliament.
While his profession gave him the privilege of participation in
the making of
laws, it did not allow him to break laws and subvert justice. A Member of
Parliament is a leader of his Community;
with the offence goes the
responsibility to demonstrate good leadership. Sadly, good leadership and
examples were very much lacking
in Mr Harris’s conduct. Undoubtedly, it
was their belief in his invincibility that brought Milton and Melvin into this
criminal
activity and thus into Court. That certainty does not excuse their
conduct - there is no mitigating fact flowing from that belief.
These two men
should have known better than to try emulate the role of vigilantes which they
were not. Rather they were what I have
already branded them -"bully boys".
However, Mr Harris’ leadership of them is a factor which must be
considered in the fixing
of his sentence.
I am influenced by the learned
Magistrate’s findings and observations on Mr Harris and his part in these
crimes. The evidence
fully justifies what has been said on pp. 19-22:
"The second point which needs determination in this case is as to whether Mr Rene Harris and his companions wanted the release of Tawaki Kam and brothers by arguments or show of force. Mr Rene Harris happens to be a responsible person who is a sitting Member of Parliament for twenty-two years. He also held the office of Speaker and Deputy Speaker of the House. He has been instrumental in passing many laws in Parliaments. He also held important position in Church as mentioned by him in his statement in Court. He has asserted that he was simply arguing his case with the police officer that Tawaki be released and when he took with him the other accused he was to get the release of Tawaki by talking. According to him, his co-accused did not carry with them any grass cutter or any other weapon. I wish I could find it possible to accept this account. The evidence which however has come on record tells a different story.
We can once again refer to some parts of the statements of Mr Rene Harris himself. He claims to have learned about Tawaki Kam for the first time on 21st March 1998 in mid afternoon. In the examination-in-chief he describes Tawaki Kam just as a member of his Constituency who was taken away by the police for questioning.........."
"Again it will be seen that it is in the statement of Mr. Rene Harris himself that he had left the Police Station after his discussion on the first visit suggesting that "I would be back again and they had better get their guns get ready". Not only this, he proceeded along with Nemo to the place of Nemo and dropped him there telling him that he should collect some boys of the Constituency ready to seek the release of Tawaki. I am inclined to infer that this accused Mr Harris had set his mind quite clearly that Tawaki was to be released from the Police in any circumstances and if need be by use of force."
From
all this, it is fair to say that if a sentence of imprisonment is to be imposed,
the prime candidate for it must be Mr Harris,
the leader and instigator. The
plea of the Director of Public Prosecutions is a compelling one and I have given
hard and anxious
consideration to it. I have also examined carefully the reasons
which prompted the learned Magistrate to impose monetary penalties.
It is
evident, that to him, the decisions of imprisonment or no imprisonment was a
borderline one. He regarded the offences under
sections 140 and 304(2) as very
serious. He, in the ultimate, decided not to impose the punishment of
imprisonment. Now in deciding
whether that decision was manifestly wrong, in
addition to the factors weighed in the decision, there are, in fact two further
factors
which I consider of importance and of relevance which must affect the
end result. The first is that Mr Harris has by virtue of law
been penalized
twice for the same offences. The Constitution requires that on conviction for
offences carrying a maximum penalty
of a year’s imprisonment or more, a
Member of Parliament is required to vacate his Parliamentary seat, a penalty
effective
immediately on conviction which cannot be stayed by appeal. In
addition he was instantly dismissed from his employment as a top executive
as a
result of his conduct. These points were not put to the Magistrate and
consequently were not weighed by him. They are "extra
judicial" punishments
certainly obstructive and harsh. They must be taken into consideration. One
further consideration, I feel,
is that Mr Harris, as the Magistrate found, is an
intelligent man and is capable of accepting that the position in which he finds
himself is because of his misplaced view of his own power and importance. I have
no doubt he now realizes the position and that having
experienced the trauma of
his trial, the loss of his employment and parliamentary seat he is unlikely
again to offend against the
law. Also it was proper for the Magistrate to take
into consideration by way of mitigation Mr Harris’s contribution to his
community politically and spiritually. Having considered all these matters I
conclude the learned Magistrate was not manifestly wrong
in imposing the
sentence he did in the case of this offender.
Turning to the offenders Mr
Milton Dube and Mr Melvin Dube. Imprisonment is urged by the Appellant to be the
appropriate punishment
for the serious offences for which they were convicted.
They willingly assisted the Appellants Harris in the nefarious operation.
They
are not guileless dupes of their Member of Parliament. They are presented as
educated and apparently intelligent Nauruans, they
were fully aware of what they
were doing - they were not just "following the leader". There are compelling
reasons for imprisoning
them. I certainly agree with the submission that the
fact that as Community leaders and professed Churchgoers, the fact that they
lied in giving evidence to exculpate themselves is a strong factor militating
against leniency. I do not agree, as the Magistrate
appears to do, that their
willing acceptance of Mr Harris’ advice about Tawaki’s arrest, can
in a measure mitigate their
criminal conduct.
They, armed as they were,
acted as intimidating "thugs". On the other hand when the pertinent question of
reformation and recidivism
is posed, it is my view that these men are unlikely
to offend again. They are certainly capable of appreciating that they now have
recorded against them convictions for serious crimes and that to test their
chances for further leniency by again offending, would
be foolish in the
extreme. Here, the learned Magistrate has shown them leniency in fining them
after considering the option of imprisonment
and in my view, he approached the
task of punishment correctly. He weighed all relevant circumstances. He has
ordered them to keep
the peace. In the result, I cannot be convinced that the
sentences he imposed were manifestly inadequate. He exercised his discretion
responsibly.
The appeals against sentences are dismissed. In so
dismissing them, I would say that the appeals were not frivolous. I consider the
Director of Public Prosecutions adopted a responsible stance in instituting
them. There was in the public interest adequate justification
for reviewing this
consideration of the trial proceedings since the activities of these offenders
were aimed against a most important
instrument of state - that of law
enforcement. Public interest demands that those who enforce the law do so with
confidence that
the State will uphold their lawful exercise of authority. In
this case the incredible stupidity of these Nauruans who, by virtue
of their
positions in the Community felt they could challenge the State, have done no
service either to themselves or the
Republic.
CONCLUSION
In summary, all appeals are dismissed. The following
penalties are confirmed:
1. MR RENE HARRIS:
Under Section 142 of the Criminal Code – To pay a fine of $500
Under Section 340(2) of the criminal Code – To pay a fine of $500
Under Section 63 of the Criminal Code – to pay a fine of $100
Under Section 62 of the Criminal Code – No separate sentence as it is covered by Section 63 above.
Under Section 48 of the Nauru Police Force Act – To pay a fine of $50
In all $1150. In default of immediate payment of fines, the accused will undergo imprisonment for a period of one month.
2. MR MILTON DUBE:
Under section 142 of the Criminal Code – To pay a fine of $500
Under Section 340 (2) of the Criminal Code – To pay a fine of $100
Under Section 62 of the Criminal Code – No separate sentence as it is covered by Section 63 above.
Under Section 69 of the Criminal Code – To pay a fine of $100
Under Section 48 of the Nauru Police Force Act, 1972 – To pay a fine of $50
In all $1250. In default of immediate payment of fines, the accused will undergo imprisonment for a period of one month.
3. MELVIN DUBE:
Under section 142 of the Criminal Code – to pay a fine of $500
Under Section 340 (2) of the Criminal Code – To pay a fine of $500
Under Section 63 of the Criminal Code – To pay a fine of $100
Under section 62 of the Criminal Code – no separate sentence as it is covered by section 63 above.
Under Section 69 of the Criminal Code – To pay a fine of $100
Under Section 48 of the Nauru Police – To pay a fine of $50 Force Act, 1972
In all $1350. In default of immediate payment of fines, the accused will undergo imprisonment for a period of one month.
Milton
Dube and Melvin Dube will enter into a Personal Recognizance of their own and
one Surety each in the amount of $1000. Giving
undertaking that they shall keep
the peace and be of good behaviour for period of one year.
Court costs
$50 to be paid by each of these Appellants. I underline the requirements of
payment of all fines and costs.
DONNE C.J.
CHIEF JUSTICE.
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