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[F.A.Q.]
Nauru Sessional Legislation |
REPUBLIC OF NAURU
CRIMINAL PROCEDURE ACT 1972
(No. 21 of 1972)
ARRANGEMENT OF SECTIONS
PART
I
PRELIMINARY
Section
1.
Short title and commencement
2.
Interpretation
3. Trial of
offences
PART
II
POWERS OF THE
COURTS
4. Power to try offences
under the Criminal Code
5. Power to
try offences under other laws
6.
Sentences which the Supreme Court may
pass
7. Sentences which the District
Court may pass
8. Combination of
sentences
9. Separate sentence to be
passed for each offence
PART
III
ARREST OF
OFFENDERS AND PREVENTION OF OFFENCES
10. Arrest without
warrant
11. Mode of making
arrest
12. Entry to arrest person
under warrant
13. Power to break out
of house, etc., for purpose of
liberation
14. No unnecessary
restraint
15. Search of arrested
persons
16. Power of police officer to
detain and search persons, vehicles, vessels and aircraft in certain
circumstances
17. Power to seize
offensive weapons
18. Refusal to give
name and residence
19. Disposal of
person arrested by a police
officer
20. Disposal of person
arrested by private person
21.
Detention of persons arrested without
warrant
22. Police officer to report
certain arrests
23. Offence committed
in magistrate's presence
24. Arrest by
magistrate
25. Recapture of person
escaping
26. Assistance to magistrate
or police officer
27. Security for
keeping the peace
28. Order to be
made
29. Procedure in respect of
person present in court
30. Summons or
warrant in case of person not present in
court
31. Copy of order under section
28 to accompany summons or warrant
32.
Power to dispense with personal
attendance
33. Inquiry as to truth of
information
34. Order to give
security
35. Discharge of person
informed against
36. Commencement of
period for which security is
required
37. Power to reject
sureties
38. Procedure on failure of
person to give security
39. Power to
release persons imprisoned for failure to give
security
40. Power of Supreme Court to
cancel recognizance
41. Discharge of
sureties
42. Power to arrest and
produce before Court person attempting to kill himself
PART
IV
PROVISIONS
RELATING TO CRIMINAL PROCEEDINGS
43. General authority of
District Court
44. Court to be
open
45. Appointment of Director of
Public Prosecutions
46. Power of
Director of Public Prosecutions to enter nolle
prosequi
47. Delegation of powers by
Director of Public Prosecutions
48.
Public prosecutors and prosecution by police
officers
49. Powers of public
prosecutors
50. Conduct of
prosecution
51. Complaint and
charge
52. Issue of summons or
warrant
53. Notice to attend
court
54. Form and contents of
summons
55. Service of
summons
56. Service when persons
summoned cannot be found
57. Procedure
where service cannot be effected as before
provided
58. Service on company or
corporation
59. Where summons may be
served
60. Proof of
service
61. Power to dispense with
personal attendance of accused
62.
Warrant after issue of summons
63.
Summons disobeyed
64. Form, contents
and duration of warrant of arrest
65.
Court may direct security to be
taken
66. To whom warrants are to be
directed
67. Notification of substance
of warrant
68. Person arrested to be
brought before the Court without
delay
69. Where warrant of arrest may
be executed
70. Irregularities in
warrant
71. Power to take bond for
attendance
72. Arrest for breach of
bond for attendance
73. Power of Court
to order prisoner to be brought before
it
74. Provisions of this part
generally applicable to summonses and
warrants
75. Power to issue search
warrant
76. Execution of search
warrants
77. Persons in charge of
closed places to allow ingress thereto and egress
therefrom
78. Detention of property
seized
79. Provisions applicable to
search warrants
80. Bail in certain
cases
81. Recognizance of
bail
82. Discharge from
custody
83. Deposit instead of
recognizance
84. Power to order
sufficient bail when that first taken is
insufficient
85. Discharge of
sureties
86. Death of
surety
87. Arrest of persons granted
bail
88. Forfeiture of
recognizance
89. Appeal from and
revision of orders
90. Offence to be
specified in charge or information with necessary
particulars
91. Joinder of counts in a
charge or information
92. Joinder of
two or more accused in one charge or
information
93. Rules for the framing
of charges and informations
94.
Persons convicted or acquitted not be tried again for same
offence
95. Person may be tried again
for separate offence
96. Consequences
supervening or not known at time of former
trial
97. Where original Court was not
competent to try subsequent charge
98.
How a previous conviction may be
proved
99. When leave of Cabinet
necessary before prosecution may be
instituted
100. Power to summon
material witnesses and examine persons
present
101. Evidence to be given on
oath or affirmation
102. Refractory
witnesses
103 Compulsory disclosures
not to afford evidence
104. Negative
averments
105. Cases where wife or
husband may be called without the consent of the
accused
106. Competency of accused and
husband or wife as witness in criminal
cases
107. Procedure where accused is
called as witness
108. Right of
reply
109. Inquiry by Court as to
unsoundness of mind of accused
110.
Defence of unsoundness of mind at preliminary
inquiry
111. Defence of unsoundness of
mind on trial
112. Resumption of trial
or inquiry
113. Certificate of medical
officer of hospital as to sanity to be
evidence
114. Procedure where accused
does not understand proceedings
115.
Mode of delivering judgment
116.
Contents of judgment
117. Copy of
judgment, etc., to be given to accused on
application
118.
Costs
119. Order to pay costs
appealable
120. Compensation in case
of frivolous or vexatious charges
121.
Power of Courts to award expenses or compensation out of
fine
122. Payment to innocent person
of money found on accused
123.
Promotion of reconciliation
124.
Preservation or disposal of
property
125. Property stolen to be
restored to owner
126. Stay of
order
127. Restoration of possession
of real property
128: Procedure by
police on seizure of property
129.
Conviction of minor offences included in offence
charged
130. Conviction of
attempt
131. Conviction of killing
unborn child on charge of murder,
etc.
132. Conviction of procuring
abortion on charge of killing unborn
child
133. Conviction of concealment
of birth on charge of murder,
etc.
134. Conviction of careless or
dangerous driving on charge of
manslaughter
135. Conviction of
cognate offence on charge of rape
136.
Conviction of unlawful carnal knowledge on charge of
incest
137. Conviction of cognate
offence on charge of defilement of girl under seventeen years of
age
138. Conviction of cognate offence
on charge of defilement of girl under thirteen years of
age
139. Conviction of cognate offence
on charge of burglary, etc.
140.
Conviction of receiving, retaining or obtaining by a false pretence on charge of
stealing.
141. Conviction of stealing
on charge of obtaining by a false
pretence
142. Conviction of assault
with intent to rob on charge of
robbery
143. Construction of sections
129 to 142 inclusive
144. Persons
charged with jointly receiving property may be convicted on proof that property
was received separately
PART
V
MODE OF TAKING
AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
145. Evidence to be taken
in presence of accused
146. Proof by
written statement
147. Proof by formal
admission
148. Notice of
alibi
149. Interpretation of evidence
to accused
PART
VI
PROCEDURE IN
TRIALS BEFORE THE DISTRICT COURT
150. Non-attendance of
complainant at hearing
151. Court may
proceed with hearing in absence of accused in certain
cases
152. Attendance of both
parties
153. Withdrawal of
charge
154.
Adjournment
155. Non-attendance of
parties after adjournment
156.
Conviction in absence of accused may be set
aside
157. Commencement of sentence
passed in absence of accused
158.
Certain provisions relating to Supreme Court to apply to District
Court
159. Limitation of time for
summary trials in certain cases
160.
Power to stop summary trial and hold preliminary inquiry in
lieu
161. Committal to Supreme Court
for sentence
PART
VII
COMMITTAL OF
ACCUSED PERSONS TO THE SUPREME COURT FOR TRIAL
162. District Court to
hold preliminary inquiry
163. Charge
to be read over to accused
164.
Depositions
165. Variance between
evidence and charge
166. Written
statements before the District
Court
167.
Adjournment
168. Provisions as to
taking statement or evidence of accused
person
169. Evidence and address in
defence
170. Committal for
trial
171. Discharge of
accused
172. Power to apply to Supreme
Court for committal in certain cases where accused person
discharged
173. Summary
adjudication
174. Accused entitled to
copy of depositions
175. Taking the
depositions of persons dangerously
ill
176. Notice to be
given
177. Transmission of
statements
178. Use of statement in
evidence
179. Transmission of records
to Supreme Court and Director of Public
Prosecutions
180. Filing of an
information
181. Return of depositions
for trial in the District Court
182.
Notice of trial
183. Return of
service
184. Postponement of
trial
185. Information by Director of
Public Prosecutions
186. Form of
information
PART
VIII
PROCEDURE IN
TRIALS BEFORE THE SUPREME COURT
187. Practice of Supreme
Court in its criminal
jurisdiction
188. Trials before
Supreme Court to be by a judge
alone
189. Accused
absent
190. Accused to be called upon
to plead
191. Orders for amendment of
information, separate trial and adjournment of
trial
192. Quashing of
information
193. Procedure in case of
previous convictions
194. Plea of
guilty to other offence
195.
Proceedings after plea of "not
guilty"
196. Power to postpone or
adjourn trial
197. Additional
witnesses for prosecution
198.
Cross-examination of witnesses for the
prosecution
199. Depositions may be
read as evidence in certain cases
200.
Evidence or statement of accused at preliminary
inquiry
201. Close of case for
prosecution
202. The
defence
203. Additional witnesses for
the defence
204. Evidence in
reply
205. Closing addresses where
accused adduces no evidence
206.
Closing addresses where accused adduces
evidence
207. The
judgment
208. Power to reserve
decision on question raised
at
trial
209. Power to reserve decision
on question arising in the course of
trial
210. Objections cured by
verdict
211. Evidence, etc.,
admissible after finding of guilt
212.
Drawing up of conviction, sentence or order.
PART
IX
SUPPLEMENTARY
PROVISIONS
213. Power to issue
directions of the nature of habeas
corpus
214. Power of the Supreme Court
to issue writs
215. Persons before
whom affidavits may be sworn
216.
Copies of proceedings
217.
Forms
218. Expenses of assessors,
witnesses, etc.
PART
X
INTERIM
PROVISIONS AND SAVINGS
219.
Repeal
220. Cessation of application
of certain adopted laws
221. Interim
provisions
222. Savings
--------------------------------
AN ACT
To make provision for the procedure to be followed in criminal causes and matters in the Supreme Court and the District Court.
(Certified: 24th November, 1972)
Enacted by the Parliament of Nauru as follows:
PART I - PRELIMINARY
SHORT
TITLE AND
COMMENCEMENT
1.
This Act maybe cited as the Criminal Procedure Act 1972 and shall come into
force on a date to be notified by the Minister in the
Gazette.
INTERPRETATION
2.
(1) In this Act, unless the context otherwise requires –
"Clerk" means the Clerk of the District Court;
"cognisable offence" has the meaning assigned to it by section 10 of this Act;
"complaint" means an allegation that some person known or unknown has committed, or is guilty of, an offence;
"criminal proceedings" includes a preliminary inquiry;
"Director of Public Prosecutions" means the public officer appointed as such under the provisions of section 45 of this Act;
"imprisonment" includes night imprisonment;
"non-cognisable offence" means an offence which is not a cognisable offence;
"preliminary inquiry" means an inquiry into a criminal charge held by the District Court under Part VII of this Act with a view to the committal of the accused person for trial before the Supreme Court;
"private prosecution" means a prosecution instituted and conducted by any person other than a public prosecutor;
"public prosecutor" includes the Director of Public Prosecutions and every person who is for the time being a public prosecutor by virtue of the provisions of section 48 of this Act;
"Registrar" means the Registrar of the Supreme Court;
"sentence" includes an order following conviction for which provision is made in Part I of the Criminal Code or in Part IV of the Motor Traffic Act 1937-1972;
"summary trial" means a trial held by the District Court under Part VI of this Act.
TRIAL
OF
OFFENCES
3.
Subject to the provisions of any written law relating to children or young
persons, all offences under the Criminal Code or under
any other law shall be
inquired into, tried and otherwise dealt with in accordance with the provisions
of this Act.
PART II – POWERS OF THE COURTS
POWER
TO TRY OFFENCES UNDER THE CRIMINAL
CODE
4.
(1) Subject to the provisions of any written law relating to children or young
persons, any offence under the Criminal Code may be
tried by the Supreme
Court.
(2) Subject to the
provisions of any written law relating to children or young persons and to the
other provisions of this Act, any
offence under the Criminal Code may be tried
by the District Court if it is punishable with imprisonment for not more than
ten
years.
POWER TO
TRY OFFENCES UNDER OTHER
LAWS
5.
(1) Where an offence is created by any written law other than the Criminal Code
and no provision is made for the Court by which that
offence may be tried, it
may, subject to the provisions of any written law relating to children or young
persons, be tried-
(a) by the Supreme Court; and
(b) by the District Court if it is punishable with imprisonment for not more than ten years.
(2)
Where in any applied statute it is provided that an offence shall be tried by a
court other than the Supreme Court or the District
Court, the offence may,
subject to the provisions of any written law relating to children or young
persons, be tried -
(a) by the Supreme Court; and
(b) by the District Court if it is punishable with imprisonment for not more than ten years.
SENTENCES
WHICH THE SUPREME COURT MAY
PASS
6.
The Supreme Court may pass any sentence, and make any order, authorised by law
for which provision is made in the Criminal Code or
in any other written
law.
SENTENCES
WHICH THE DISTRICT COURT MAY
PASS
7.
The District Court may pass any sentence, and make any order, authorised by law
for which provision is made in the Criminal Code
or in any other written
law:
Save that the District Court
may not pass-
(a) sentence of death;
(b) sentence of imprisonment exceeding three years in respect of any one offence;
(c) sentence of a fine exceeding three thousand dollars in respect of any one offence.
COMBINATION
OF
SENTENCES
8.
(1) Subject to the provisions of the Criminal Code and of any other written law,
the Supreme Court and the District Court may pass
any lawful sentence combining
any two or more of the sentences which such Court is authorised by law to
pass.
(2) In determining the
extent of the jurisdiction of the District Court under section 7 of this Act,
any term of imprisonment which
is, or may be imposed in default of payment of a
fine, costs or compensation shall be deemed not to be a sentence of imprisonment
passed in respect of the offence for which the fine was
imposed.
SEPARATE
SENTENCE TO BE PASSED FOR EACH
OFFENCE
9.
(1) Where a person is convicted at one trial of two or more offences the Court
shall pass sentence separately in respect of each
offence.
(2) Where sentences of
imprisonment are passed on any person at one trial for two or more offences, the
sentences shall run consecutively
in such order as the Court which passes them
may direct, unless that Court directs that they shall run
concurrently.
(3) The maximum
aggregate sentences of imprisonment and fine which may be imposed by the
District Court on any one person at one trial
are -
(a) imprisonment for six years; and
(b) fines totalling six thousand dollars.
(4)
For the purpose of ascertaining whether or not there is a right of appeal, the
aggregate of fines imposed on one person at one
trial shall be deemed to be a
single sentence.
PART III - ARREST OF OFFENDERS AND PREVENTION OF OFFENCES
ARREST
WITHOUT
WARRANT
10.
(1) The powers of summary arrest conferred by this section shall apply to
offences for which the sentence is fixed by law or for
which a person may under
or by virtue of any written law be sentenced to imprisonment for a term of five
years or more and to any
other offence specified as a cognisable offence, or as
an offence in respect which the offender may be arrested without warrant,
by
this Act or any other written law, and to attempts to commit any such offences,
and in this Act "cognisable offence" means any
such offence or
attempt.
(2) Any person may arrest
without warrant anyone who is, or whom he, with reasonable cause suspects to be,
in the act of committing
a cognisable
offence.
(3) Where a cognisable
offence has been committed, any person may arrest without warrant anyone who is,
or whom he, with reasonable
cause, suspects to be guilty of the
offence.
(4) Where a police
officer, with reasonable cause, suspects that a cognisable offence has been
committed, he may arrest without warrant
anyone whom he, with reasonable cause,
suspects to be guilty of the
offence.
(5) A police officer may
arrest, without warrant any person who is, or whom he with reasonable cause,
suspects to be, about to commit
a cognisable
offence.
(6) For the purpose of
arresting a person under any power conferred by this section a police officer
may enter, if need be by force,
and search any place where that person is or
where the police officer, with reasonable cause, suspects him to
be.
(7) This section shall not
affect the operation of any enactment restricting the institution of proceedings
for an offence nor prejudice
any power of arrest conferred by law apart from
this
section.
MODE
OF MAKING
ARREST
11.
(1) In making an arrest the person making it shall actually touch or confine the
body of the person to be arrested, unless there
be a submission to the custody
by word or action.
(2) A person
may use such force as is reasonable in the circumstances in the prevention of
crime or in effecting, or assisting in,
the lawful arrest of offenders or
suspected offenders or of persons unlawfully at
large.
(3) The last preceding
subsection shall replace the rules of the common law on the question when force
used for a purpose mentioned
in that subsection is justified by that
purpose.
ENTRY
TO ARREST PERSON UNDER
WARRANT
12.
For the purpose of arresting a person under a warrant of arrest, any person to
whom such warrant is addressed may enter, if need
be by force, and search any
place where that person is or where he, with reasonable cause, suspects him to
be.
POWER TO
SPEAK OUT OF HOUSE, ETC., FOR PURPOSE OF
LIBERATION
13.
Any person authorised
to make an arrest may break out of any house
or place in order to liberate himself or any other person who, having lawfully
entered
for the purpose of making an arrest, is detained
therein.
NO
UNNECESSARY
RESTRAINT
14.
No person arrested shall be subjected to more restraint than is reasonable to
prevent his
escape.
SEARCH
OF ARRESTED
PERSONS
15.
(1) Where a person is arrested by a police officer or a private person, the
police officer making the arrest or to whom the private
person makes over the
person arrested may search such person and any articles in his possession or
under his control and place in
safe custody all articles found in his possession
or under his control and any article found upon him, except necessary wearing
apparel:
Provided that, whenever
the person arrested can be legally admitted to bail and bail is is [sic]
furnished, such person shall not
be searched unless there are reasonable grounds
for believing that he has about his person any-
(a) stolen articles;
(b) instruments of violence;
(c) tools connected with the kind of offence which he is alleged to have committed; or
(d) other articles which may furnish evidence against him in regard to the offence which he is alleged to have committed.
(2)
The right to search an arrested person does not include the right to examine his
private person.
(3) Where any
property has been taken from a person under this section and the person is not
charged before any Court but is released
on the ground that there is no
sufficient reason to believe that he has committed any offence, any property so
taken from him shall
be restored to
him.
(4) Whenever it is necessary
to cause a woman or girl to be searched, the search shall be made only by
another woman with strict regard
to
decency.
POWER
OF POLICE OFFICER TO DETAIN AND SEARCH PERSONS, VEHICLES, VESSELS AND AIRCRAFT
IN CERTAIN
CIRCUMSTANCES
16.
(1) Any police officer who has reason to suspect that any article stolen or
unlawfully obtained, or any article in respect of which
a criminal offence has
been, or is being or is about to be, committed, is being conveyed, whether on
any person or in any vehicle,
package or otherwise, or is concealed or carried
on any person in a public place, or is concealed or contained in any vehicle or
package in a public place, for the purpose of being conveyed, may without
warrant detain and search any such person, vehicle or package
and may take
possession of and detain any such article which he may reasonably suspect to
have been stolen or unlawfully obtained
or in respect of which he may reasonably
suspect that a criminal offence has been, is being or is about to be, committed,
together
with the package, if any, containing it, and may also detain the person
conveying, concealing or carrying such
article:
Provided that this
subsection shall not extend to the case of postal matter in transit by post
except where such postal matter has
been, or is suspected of having been,
dishonestly appropriated during such
transit.
(2) Any police officer of
or above the rank of sergeant may, if he has reason to suspect that there is on
board any vessel or aircraft
any property stolen or unlawfully obtained, enter
without warrant, and with or without assistants, on board such vessel or
aircraft
and may remain on board for such reasonable time as he may deem
expedient and may search with or without assistants any and every
part of such
vessel or aircraft and, after demand and refusal of keys, may break open any
receptacle and, upon discovery of any property
which he may reasonably suspect
to have been stolen or unlawfully obtained, may take possession of and detain
such property and may
also detain any person in whose possession it is found.
Such police officer may pursue and detain any person who is in the act of
conveying any such property away from any such vessel or aircraft or who has
landed with the property so conveyed away or found in
his
possession.
(3) Any police officer
may, if he has reason to suspect that an offence has been committed, seize any
articles which may be in a public
place and which may furnish evidence in regard
to the commission of that
offence:
Provided that no articles
may be seized under the provisions of this subsection unless there is a
possibility of such articles being
removed or dealt with in such a way as to
prevent their being available as
evidence.
(4) Any person detained
under this section shall be dealt with under the provisions of section 21 of
this Act.
POWER
TO SEIZE OFFENSIVE
WEAPONS
17.
Notwithstanding the provisions of section 15 of this Act, the police officer or
other person making any arrest may take from the
person arrested any instruments
of violence which he has about his person and shall deliver all articles so
taken to the magistrate
or police officer before whom the police officer or
other person making the arrest is required by law to bring or send the person
arrested.
REFUSAL
TO GIVE NAME AND
RESIDENCE
18.
(1) Where any person who in the presence of a police officer has committee or
has been accused of committing a non-cognisable offence
refuses on the demand of
such police officer to give his name and residence, or gives a name and
residence which such police officer,
with reasonable cause, suspects to be
false, he may be arrested by that police officer, or any other police officer,
in order that
his name and residence may be ascertained or
verified.
(2) When the true name
and residence of a person arrested under the provisions of the last preceding
subsection have been ascertained
he shall be released on his executing a
recognizance, with or without sureties, for a reasonable amount to attend before
the District
Court at a time and place to be named in the
recognizance:
Provided that if
such person is not normally resident in Nauru the recognizance shall be secured
by a surety or sureties normally
resident in Nauru or by the deposit of a sum of
money sufficient to satisfy any penalty which may be payable upon forfeiture of
the
recognizance.
(3) Where the
true name and residence of any person arrested under the provisions of this
section have not been ascertained within
twenty-four hours from the time of
arrest, or if he fails to execute the recognizance or, if so required, to
furnish sufficient sureties
or
to deposit the proper sum of money, he shall
forthwith be brought before a
magistrate.
DISPOSAL
OF PERSON ARRESTED BY A POLICE
OFFICER
19.
A police officer making an arrest without a warrant shall, without unnecessary
delay and subject to the provisions herein contained
as to bail, bring or send
the person arrested before a magistrate or before a police officer of or above
the rank of
sergeant.
DISPOSAL
OF PERSON ARRESTED
BY PRIVATE
PERSON
20.
(1) Any private person arresting any other person without a warrant shall
without unnecessary delay make over the person so arrested
to a police officer,
and in the absence of police officer shall take such person to the police
station.
(2) If there is reason to
believe that such person has committed any cognisable offence, a police officer
shall re-arrest him.
(3) If there
is reason to believe that he has committed a non-cognisable offence and he
refuses on the demand of a police officer
to give his name and residence or
gives a name or residence which such police officer, with reasonable cause,
suspects to be false,
he shall be dealt with under the provisions of section 18
of this Act. If there is no sufficient reason to believe that he has committed
any offence he shall be at once
released.
DETENTION
OF PERSONS ARRESTED WITHOUT
WARRANT
21.
Where any person has been taken into custody without a warrant for an offence
other than murder or treason, the magistrate or police
officer of or above the
rank of sergeant to whom such person shall have been brought may in any case,
and shall if it does not appear
practicable for such person to be brought before
the District Court within twenty-four hours after he has been so taken into
custody,
inquire into the case and, unless the offence appears to the magistrate
or police officer to be of a serious nature, release the
person on his entering
into a recognizance, with or without sureties, for a reasonable amount to attend
before the District Court
at a time and place to be named in the recognizance,
but, where he has been taken before a police officer and not so released by
that
police officer, he shall be taken before a magistrate within twenty-four hours
after his arrest and the magistrate shall inquire
into the case and decide
whether or not he should be so released and, where any person is detained in
custody he shall be brought
before the District Court as soon as
practicable:
Provided that a
police officer of or above the rank of sergeant may release entirely a person
arrested on suspicion that he has committed
any offence where, after due police
inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed
with the
charge.
POLICE
OFFICER TO REPORT CERTAIN
ARRESTS
22.
Where any person is released under the proviso to section 21, the police officer
who authorised such release shall report the same
to the Director of Police as
soon as it is reasonably possible to do
so.
OFFENCE
COMMITTED IN MAGISTRATE'S
PRESENCE
23.
Where any cognisable offence is committed in the presence of a magistrate he may
himself arrest, or authorise any person to arrest,
the offender and may
thereupon subject to the provisions of this Act as to bail, commit the offender
to
custody.
ARREST
BY
MAGISTRATE
24.
Any magistrate may at any time arrest, or authorise the arrest in his presence
of, any person for whose arrest he is competent at
the time and in the
circumstances issue a
warrant.
RECAPTURE
OF PERSON
ESCAPING
25.
(1) Where a person in lawful custody escapes or is rescued, the person from
whose custody he escapes or is rescued may immediately
pursue and arrest
him.
(2) The provisions of
sections 10, 11, 12 and 13 of this Act shall apply to arrests under this
section.
ASSISTANCE
TO MAGISTRATE OR POLICE
OFFICER
26.
Every person is bound to assist a magistrate or police officer reasonably
demanding his aid-
(a) in the arrest or preventing the escape of any other person whom such magistrate or police officer is authorised to arrest; and
(b) in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any property of the Republic, the Council or the Nauru Phosphate Corporation.
SECURITY
FOR KEEPING THE
PEACE
27.
Where a magistrate is informed on oath that any person is likely to commit a
breach of the peace or to do any wrongful act that may
probably occasion a
breach of the of the [sic] peace, the magistrate may, in the manner hereinafter
provided, require such person
to show cause to the District Court why he should
not be ordered to enter into a recognizance, with or without sureties, for a
reasonable
amount for keeping the peace for such period not exceeding one year,
as the District Court thinks
fit.
ORDER TO
BE
MADE
28.
Where a magistrate acting under section 27 of this Act deems it necessary to
require any person to show cause thereunder, he shall
make an order in writing
setting forth -
(a) the substance of the information received;
(b) the amount of the recognizance; and
(c) the number, character and class of sureties, if any, required.
PROCEDURE
IN RESPECT OF PERSON PRESENT IN
COURT
29.
If the person in respect of whom any order is made under section 28 of this Act
is present in court, the order shall be read over
and explained to
him.
SUMMONS OR
WARRANT IN CASE OF PERSON NOT PRESENT IN
COURT
30.
If the person in respect of whom any order is made under section 28 of this Act
is not present in court, the magistrate shall issue
a summons requiring him to
attend or, where such person is in custody, a warrant directing the officer in
whose custody he is to
bring him before the District
Court:
Provided that, whenever it
appears to the magistrate, upon the report of a police office or upon other
information, the substance
of which report or information shall be recorded in
writing by the magistrate, that there is reason to fear the commission of a
breach
of the peace and that such breach of the peace cannot be prevented
otherwise than by the immediate arrest of that person, the magistrate
may at any
time issue a warrant for his
arrest.
COPY OF
ORDER UNDER SECTION 28 TO ACCOMPANY SUMMONS OR
WARRANT
31.
Every summons or warrant issued under the last preceding section shall be
accompanied [sic] by a copy of the order made under section
28 of this Act, and
such copy shall be delivered by the officer serving or executing such summons or
warrant to the person served
with or arrested under
it.
POWER TO
DISPENSE WITH PERSONAL
ATTENDANCE
32.
The District Court may, if it sees sufficient cause, dispense with the personal
attendance of any person called upon to show cause
why he should not be ordered
to enter into a recognizance for keeping the peace, and permit him to appear by
a barrister and solicitor
or a
pleader.
INQUIRY
AS TO TRUTH OF
INFORMATION
33.
(1) Where an order under section 28 of this Act has been read or explained under
section 29 of this Act to a person present in court,
or where any person attends
or is brought before the District Court in compliance with or in execution of a
summons or warrant issued
under section 30 of this Act, that Court shall proceed
to inquire into the truth of the information upon which the action has been
taken, and to take such further evidence as may appear
necessary.
(2) The inquiry shall
be made, as nearly as may be practicable, in the manner prescribed by this Act
for conducting trials and recording
evidence in trials before the District
Court.
(3) Where two or more
persons have been associated together in the matter under inquiry, they may be
dealt with in the same or separate
inquiries, as the Court thinks
just.
ORDER TO
GIVE
SECURITY
34.
(1) If upon an inquiry under section 33 of this Act it is proved that it is
necessary for keeping the peace or maintaining good behaviour,
as the case may
be, that the person in respect of whom the inquiry is made should enter into a
recognizance, with or without sureties,
the District Court shall make an order
accordingly:
Provided
that:
(a) no person shall be ordered to give security of a nature different from, or of an amount larger than, that specified in the order made under section 28 of this Act; and
(b) the amount of every recognizance shall be fixed with due regard to the circumstances at the case and shall not be excessive.
(2)
Any person ordered .to give security for good behaviour under this section may
appeal to the Supreme Court, and the provisions
of Part II of the Appeals Act
1972 shall apply mutatis mutandis to every such
appeal.
DISCHARGE
OF PERSON INFORMED
AGAINST
35.
If on an inquiry under section 33 of this Act it is not proved that it if
necessary for keeping the peace or maintaining good behaviour,
as the case may
be, that the person in respect of whom the inquiry is made should enter into a
recognizance, the District Court shall
make an entry on the record to that
effect and, if such person is in custody only for the purposes of the inquiry,
shall release
him, or, if such person is not in custody, shall discharge
him.
COMMENCEMENT
OF PERIOD FOR WHICH SECURITY IS
REQUIRED
36.
(1) Where any person in respect of whom an order requiring security is made
under section 28 or section 34 of this Act is, at the
time such order is made,
sentenced to or undergoing a sentence of imprisonment, the period for which such
security is required shall
commence on the expiration of such
sentence.
(2) In other cases such
period shall commence on the date of such order unless the Court, for sufficient
reason, fixes a later date.
(3)
The recognizance to be entered into shall bind the person to keep the peace or
to be of good behaviour, as the case may be, and
in the latter case the
commission or attempt to commit or the aiding, abetting, counselling or
procuring the commission of any offence
punishable with imprisonment, shall be a
breach of the
recognizance.
POWER
TO REJECT
SURETIES
37.
The District Court may refuse to accept any surety offered under any of the
preceding sections on the ground that, for reasons to
be recorded by the Court,
such surety is an unfit
person.
PROCEDURE
ON FAILURE OF PERSON TO GIVE
SECURITY
38.
(1) If any person ordered to give security under the provisions of section 34 of
this Act does not give such security on or before
the date on which the period
for which such security is to be given commences, he shall, except in the case
mentioned in the next
following subsection, be committed to prison or, if he is
already in prison, be detained in prison until such period expires or until
within such period he gives the security to the District
Court.
(2) Where a person has been
ordered by the District Court to give security for a period exceeding one year,
the District Court shall,
if he does not give that security, issue a warrant
directing him to be detained in prison pending the order of the Supreme Court,
and the proceedings shall be laid as soon as conveniently may be before that
Court.
(3) The Supreme Court,
after examining the record of the proceedings in the District Court and
requiring from the District Court any
further information or evidence which it
thinks necessary, may make such order in the case as it thinks
fit.
(4) The period, if any, for
which any person is imprisoned for failure to give security shall not exceed two
years.
(5) If the security is
tendered to the officer in charge of the prison, he shall forthwith refer the
matter to the Court which made the order and shall
await the order of that
Court.
POWER TO
RELEASE PERSONS IMPRISONED FOR FAILURE TO GIVE
SECURITY
39.
Where the resident magistrate is of opinion that any person imprisoned for
failing to give security may be released without hazard
to the community, he
shall make an immediate report of the case for the order of a judge who may, if
he thinks fit, order such person
to be
discharged
POWER
OF SUPREME COURT TO CANCEL
RECOGNIZANCE
40.
The Supreme Court or a judge may at any time, for sufficient reasons to be
recorded in writing, cancel any recognizance for keeping
the peace or for good
behaviour executed under any of the preceding sections by order of the District
Court.
DISCHARGE
OF
SURETIES
41.
(1) Any surety to any recognizance entered into under any of the preceding
sections of this Act may at any time apply to the District
Court to cancel the
recognizance.
(2) On such
application being made the District Court shall issue a summons or warrant, as
it thinks fit, requiring the person for
whom that surety is bound to attend or
to be brought before it.
(3) Where
that person attends or is brought before the District Court, the Court shall
cancel the recognizance and shall order him
to give, for the unexpired portion
of the term of the recognizance, fresh security of the same description as the
original security.
Every such order shall for the purposes of sections 36, 37,
38 and 39 of this Act be deemed to be an order made under section 34
of this
Act.
POWER TO
ARREST AND PRODUCE BEFORE COURT PERSON ATTEMPTING TO KILL
HIMSELF
42.
Any police officer may, when he has reason to believe that any person has
recently attempted, is attempting or is about to attempt
to kill himself, arrest
such person and produce him before the District Court, which may make an order
in respect of such person,
requiring him to be under the supervision of a
probation officer for such period as the Court may specify in the
order:
Provided that nothing in this
section shall preclude any such person being dealt with under the provisions of
the Mentally-disordered Persons Ordinance 1963-1967.
PART IV - PROVISIONS RELATING TO CRIMINAL PROCEEDINGS
GENERAL
AUTHORITY OF DISTRICT
COURT
43.
The District Court has authority to cause to be brought before it any person who
is in Nauru and is charged with an offence committed
within, or which may be
inquired into or tried within, Nauru and to deal with him according to its
jurisdiction.
COURT
TO BE
OPEN
44.
The place in which any Court is held for the purpose of inquiring into or trying
any offence shall be deemed an open court to which
the public generally may have
access, so far as it can conveniently contain
them:
Provided that the presiding
judge or magistrate may, if he thinks fit, order before or at any stage of the
inquiry into or trial of
any particular case that the public generally or any
particular person shall not have access to or be or remain in the room or
building
used by the
Court.
APPOINTMENT
OF DIRECTOR OF PUBLIC
PROSECUTIONS
45.
The President shall appoint a public officer to be the Director of Public
Prosecutions and such Director of Public Prosecutions shall
be responsible for
the representation of the Republic in criminal proceedings before the Courts. He
shall be ex
officio a public
prosecutor.
POWER
OF DIRECTOR OF PUBLIC PROSECUTIONS TO ENTER NOLLE
PROSEQUI
46.
(1) In any criminal cause or matter and at stage thereof before verdict or
judgment, including the period between the committal of
an accused person for
trial by the Supreme Court and the filing of an information in that Court, the
Director of Public Prosecutions
may enter a nolle prosequi, either by stating in
court or by informing the Court in writing that the Republic intends that the
proceedings
shall not continue, and thereupon the accused shall be at once
discharged in respect of the charge for which the nolle prosequi is
entered, and
if he has been committed to prison shall be released, or if on bail his
recognizances shall be discharged; but such
discharge of an accused person shall
not operate as a bar to any subsequent proceedings against him on account of the
same facts.
(2) Where the accused
is not before the Court when a nolle prosequi is entered-
(a) if he is detained in the prison, the Registrar or the Clerk, as the case may be, shall forthwith send to the Superintendent of the prison a notice in writing of its entry and the Superintendent shall, unless the accused is lawfully detained on another warrant, release him from custody forthwith; and
(b) if he is not detained in the prison, the Registrar or the Clerk, as the case may be, shall send a notice in writing of its entry to him and to the sureties, if any, of any recognizance into which he may have been required to enter.
DELEGATION
OF POWERS BY DIRECTOR OF PUBLIC
PROSECUTIONS
47.
The Director of Public Prosecutions may by an instrument in writing authorise
that all or any of the powers and rights vested in,
or duties imposed upon, him
by sections 46, 180, 181, 182 and 185 of this Act may be exercised on his behalf
by a public officer
of the Department of Justice, and the exercise of those
powers and rights and the performance of those duties by that officer in
the
name of the Director shall then operate as if they had been exercised or
performed by the Director of Public
Prosecutions:
Provided that the
Director of Public Prosecutions may in writing revoke any authorisation made by
him under this section;
And
provided further that the Director of Public Prosecutions shall not cease to be
able to exercise any of his powers by reason only
of his having made an
authorisation in respect of them under this
section.
PUBLIC
PROSECUTORS AND PROSECUTION BY POLICE
OFFICERS
48.
(1) The Director of Public Prosecutions may appoint in writing any public
officer of the Department of Justice who is qualified to
be admitted to practice
as a barrister and solicitor to be a public prosecutor generally or for any
specified case.
(2) The Director
of Public Prosecutions may appoint in writing any barrister and solicitor or
pleader to be a public prosecutor for
any specified
case.
(3) Any police officer may
appear and conduct any prosecution in the District Court which has been
instituted by himself or any other
police officer or public
officer.
(4) Every public
prosecutor and every police officer conducting a prosecution shall be subject to
the express directions of the Director
of Public
Prosecutions.
POWERS
OF PUBLIC
PROSECUTORS
49.
A public prosecutor may appear and plead before any Court in which any case of
which he has charge is under inquiry, trial or appeal;
and, if any private
person instructs a barrister and solicitor or a pleader to prosecute in any such
case, the public prosecutor
may conduct the prosecution, and the barrister and
solicitor or pleader so instructed shall act therein under his
directions.
CONDUCT
OF
PROSECUTION
50.
Any person, other than a public prosecutor, conducting the prosecution in any
criminal proceedings may do so personally or by a barrister
and solicitor or
pleader.
COMPLAINT
AND
CHARGE
51.
(1) Proceedings may be instituted either, by the making of a complaint to a
magistrate or by the bringing before the District Court
of a person who has been
arrested without warrant.
(2) Any
person who believes from a reasonable and probable cause that an offence has
been committed by any person may make a complaint
thereof to a
magistrate.
(3) A complaint may be
made orally or in writing but, if made orally, shall be reduced to writing by
the magistrate; and, in either
case, it shall be signed by the complainant and
the magistrate:
Provided that,
where proceedings are instituted by a police officer or any other public officer
acting in the course of his duty,
a formal charge duly signed by that officer
may be presented to the magistrate and shall, for the purposes of this Act, be
deemed
to be a complaint.
(4) The
magistrate, upon receiving any such complaint, shall, unless the complaint has
been laid in the form of a formal charge under
the last preceding sub-section,
draw up, or cause to be drawn up, and sign a formal charge containing a
statement of the offence
with which the accused is
charged.
(5) Where an accused
person who has been arrested without a warrant is brought before the District
Court, a formal charge, containing
a statement of the offence with which the
accused is charged, shall be signed and presented by a police
officer.
ISSUE
OF SUMMONS OR
WARRANT
52.
(1) Where a magistrate has signed a charge in accordance with the provisions of
section 51 and the accused person is not in lawful
custody, the magistrate may
in his discretion, but subject to the provisions of section 62 of this Act,
issue either a summons or
a warrant to: compel the attendance of the accused
person before the District Court for that Court to inquire into or try the
offence
alleged to have been
committed:
Provided that a warrant
shall not be issued in the first instance unless the complaint has been made, or
the charge presented, upon
oath either by the complainant or by a
witness.
(2) The validity of any
proceedings taken in pursuance of a complaint or charge shall not be affected
either by any defect in the
complaint or charge or by the fact that a summons or
warrant was issued without complaint or
charge.
(3) Any summons or warrant
under this section may be issued on a Sunday or public
holiday.
NOTICE
TO ATTEND
COURT
53.
(1) Notwithstanding the other requirements of this Act, it shall be lawful for
any police officer to institute proceedings by, and
to serve personally upon any
person who is reasonably suspected of having committed any offence to which this
section applies, a
notice in the prescribed form requiring that person to attend
court in answer to the charge stated therein at such place and on such
date and
time, not being less than two days from the date of such service, as shown on
such notice or to attend by a barrister and
solicitor or pleader or to enter a
written plea of guilty:
Provided
that such notice shall be served not later than fourteen days after the date
upon which the offence is alleged to have been
committed.
(2) A notice served in
accordance with the provisions of the preceding subsection shall for all
purposes be regarded as a summons
issued under the provisions of this Act and,
in the event of a person upon whom such a notice has been served failing to
comply with
the requirements of the notice, a warrant for the arrest of that
person may, subject to the provisions of section 62 of this Act,
be issued
notwithstanding that no complaint has been made on
oath.
(3) A copy of every notice
issued under this section shall be signed by the police officer issuing it and
shall be lodged with the
Clerk of the District Court before the time stated
therein for attendance and shall be deemed to be a charge presented by that
police
officer.
(4) The provisions
of section 61 shall apply mutatis mutandis to any notice issued under this
section.
(5) This section shall
apply to all offences punishable only by a fine or by imprisonment, with or
without a fine, for a term not
exceeding three
months.
(6) Nothing in this
section shall be deemed to prevent the institution of proceedings in respect of
such offences under the other
provisions of this
Act.
FORM AND
CONTENTS OF SUMMONS
54.
(1) Every summons issued by a magistrate under this Act shall be in writing, in
duplicate, signed by the
magistrate.
(2) Every summons
shall be directed to the person summoned and shall require him to attend at a
time and place to be therein appointed
before the District Court. It shall state
shortly the offence with which the person against whom it is issued is
charged.
SERVICE
OF
SUMMONS
55.
Every summons shall, if practicable, be served personally on the person summoned
by delivering or tendering to him the duplicate
of the
summons.
SERVICE
WHEN PERSON SUMMONED CANNOT BE
FOUND
56.
Where the person summoned cannot by the exercise of due diligence be found, the
summons may be served by leaving the duplicate of
it for him with an adult
person normally residing in the same dwelling-house as the person summoned or
with his
employer.
PROCEDURE
WHERE SERVICE CANNOT BE EFFECTED AS BEFORE
PROVIDED
57.
Where service in the manner provided by sections 55 and 56 cannot by the
exercise of due diligence be effected, the serving officer
shall affix the
duplicate of the summons to some conspicuous part of the house in which the
person summoned ordinarily resides, and
thereupon the summons shall be deemed to
have been duly
served.
SERVICE
ON COMPANY OR
CORPORATION
58.
Service of a summons on an incorporated company or a corporation or other body
corporate may be effected by serving the duplicate
of it on the secretary, local
manager or other principal officer of the company, corporation or body corporate
or in such other manner
as the resident magistrate may
direct.
WHERE
SUMMONS MAY BE
SERVED
59.
Subject to any written law relating to the privileges and immunities of
Parliament and its members, a summons may be served at any
place within
Nauru.
PROOF OF
SERVICE
60.
An affidavit purporting to be made before a magistrate or Commissioner for for
[sic] Oaths that a summons has been served shall be
admissible in evidence and
the statements made therein shall be deemed to be correct unless and until the
contrary is proved; the
summons shall be annexed to the affidavit or the
affidavit may be endorsed on the same paper as the
summons.
POWER
TO DISPENSE WITH PERSONAL ATTENDANCE OF
ACCUSED
61.
(1) Where a magistrate issues a summons in respect of any offence the maximum
sentence for which is imprisonment for a term not exceeding
three years, with or
without a fine, and whether or not any disqualification may be ordered or may
result from the accused being
convicted, he may if he sees reason to do so, and
shall where no sentence of imprisonment for a term exceeding three months may be
imposed for the offence with which the accused is charged or, where he is
charged with more offences than one, for any of those offences,
whether or not
any disqualification may be ordered, direct that the personal attendance of the
accused will be dispensed with provided
that he pleads guilty in writing or
attends by a barrister and solicitor or pleader. Every such summons shall
include a notice stating
that any fine which may be imposed by the Court must be
paid within eight days of the date appointed in the summons for attendance
thereon and a warning that he will not receive notification from the Court as to
any such fine but that it is his duty to make inquiry
from the Court and that,
if he fails to pay the fine within that time or to apply within that time to the
Court for an extension
of that time, he will be liable to be committed to
prison.
(2) Where a direction that
the personal attendance of the accused will be dispensed with has been given in
a summons under this section,
the District Court may in its discretion, at any
subsequent stage of the proceedings, direct the personal attendance of the
accused
and, if necessary but subject to the provisions of section 62 of this
Act, enforce his attendance in the manner hereinafter in this
Act provided; but
no warrant shall be issued unless a complaint or charge has been made upon oath
or sworn evidence has been given
in proof of the offence
charged.
(3) Where the District
Court convicts an accused person and it is proved to the satisfaction of the
Court that not less than seven
days before that conviction a notice was served
on him in the prescribed form and manner specifying any alleged previous
conviction
of him for an offence proposed to be brought to the notice of the
Court in the event of his conviction of the offence charged, and
the accused is
by reason of the provisions of this section or section 53 not present in person
before the Court, the Court may take
account of any such previous conviction so
specified as if the accused had appeared and admitted
it.
(4) Where the District Court
imposes a fine on an accused person who is not present in person before the
Court by reason of the provisions
of this section or section 53, the Court may
forthwith impose a sentence of imprisonment, not exceeding the term authorised
by section
19A of the Criminal Code, to be served by the accused person in
default of payment of the fine within eight days or such further
time as may be
allowed by the Court; and, unless it has granted an extension of time for
payment, the Court may, upon such default,
forthwith issue a warrant for his
arrest and committal to prison to serve that
sentence.
(5) Where the District
Court is of the opinion that it would be just to order disqualification under
the provisions of the Motor Traffic
Act 1937-1972 in respect of an accused
person who is not present in person before the Court by reason of the provisions
of this section
or section 53, it shall order a summons to be served upon him to
show cause why such disqualification should not be imposed and,
if the accused
person does not attend upon the return of the summons or fails to show good
cause why the disqualification should
not be imposed, the Court may order
disqualification.
WARRANT
AFTER ISSUE OF
SUMMONS
62.
(1) Notwithstanding the issue of a summons, a warrant for the arrest of the
accused may, subject to the provisions of the next following
subsection, be
issued at any time before or after the time appointed in the summons for his
appearance; but no such warrant shall
be issued before the time appointed in the
summons for his appearance unless the complaint has been made or the charge
prosecuted
upon oath, or sworn evidence has been given in proof of the
offence.
(2) A warrant for the
arrest of any person shall not be issued under this section, section 52, section
53 or section 61 of this Act
unless the offence to which the warrant relates is
punishable with imprisonment otherwise than only in default of payment of a
fine.
SUMMONS
DISOBEYED
63.
If an accused person, after proper service of a summons, does not attend at the
time and place appointed in and by the summons, and
his personal attendance has
not been dispensed with under section 61 of this Act, the District Court may
issue a warrant to arrest
him and cause him to be brought before
it.
FORM,
CONTENTS AND DURATION OF WARRANT OF
ARREST
64.
(1) Every warrant of arrest issued under this Part of this Act shall be signed
by the magistrate issuing it and bear the seal of
the District
Court.
(2) Every such warrant
shall state shortly the offence with which the person against who it is issued
is charged and shall name or
otherwise describe him; and it shall order the
person or persons to whom it is directed to arrest him and bring him before the
District
Court to answer to the charge therein mentioned and to be further dealt
with according to law.
(3) Every
such warrant shall remain in force until it is executed or until it is cancelled
by the District
Court.
COURT
MAY DIRECT SECURITY TO BE
TAKEN
65.
(1) A magistrate, when issuing a warrant for the arrest of any person in respect
of any offence other than murder or treason, may
in his discretion direct by
endorsement on the warrant that, if that person executes a bond with sufficient
sureties for his attendance
before the Court at a specified time and thereafter
until otherwise directed by the Court, the person to whom the warrant is
directed
shall take such security and shall release that person from
custody.
(2) An endorsement under
the preceding subsection shall state –
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and
(c) the time at which he is to attend before the District Court.
(3)
Wherever security is taken under this section, the person to whom the warrant is
directed shall forward the bond to the District
Court.
TO WHOM
WARRANTS ARE TO BE
DIRECTED
66.
(1) A warrant of arrest shall normally be directed generally to all police
officers; but the District Court may, if its immediate
execution is necessary
and no police officer is immediately available, direct it to any other person or
persons and such person or
persons shall execute
it.
(2) Where a warrant is
directed to more officers or persons than one, it may be executed by all or by
any one or more of
them.
NOTIFICATION
OF SUBSTANCE OF
WARRANT
67.
The police officer or other person executing a warrant of arrest shall notify
the substance thereof to the person to be
arrested.
PERSON
ARRESTED TO BE BROUGHT BEFORE THE COURT WITHOUT
DELAY
68.
A person arrested under a warrant of arrest shall, subject to the provisions of
section 65 of this Act, be brought without unnecessary
delay before the District
Court.
WHERE
WARRANT OF ARREST MAY BE
EXECUTED
69.
Subject to any written law relating to the privileges and immunities of
Parliament and its members, a warrant of arrest may be executed
at any place in
Nauru.
IRREGULARITIES
IN
WARRANT
70.
Any irregularity
or defect in the substance or form of a
warrant and any variance between it and the written complaint or charge or
between either and
the evidence produced on the part of the prosecution at any
preliminary inquiry or trial shall not affect the validity of any proceedings
at
or subsequent to the hearing of the case but, if any such variance appears to
the Court to be such that the accused has been thereby
deceived or misled, the
Court may, at the request of the accused, adjourn the hearing of the case to
some future date and in the
meantime remand him to prison or admit him to
bail.
POWER TO
TAKE BOND FOR
ATTENDANCE
71.
Where any person for whose attendance a magistrate is empowered to issue a
summons is present in the District Court, the Court may
require that person to
execute a bond, with or without sureties, for his attendance in that
Court.
ARREST
FOR BREACH OF BOND FOR
ATTENDANCE
72.
Where any person who is bound by any bond taken under this Act to attend before
the District Court or who has made a deposit of money
in lieu of executing such
a bond does not so attend, the Court may issue a warrant directing that he be
arrested and brought before
it.
POWER OF
COURT TO ORDER PRISONER TO BE BROUGHT BEFORE
IT
73.
(1) Where any person for whose attendance or arrest a magistrate is empowered to
issue a summons or warrant is confined in the prison,
a magistrate may issue an
order to the Superintendent of the prison requiring him to bring that person in
proper custody before the
District Court at a time to be named in the order and,
where that person is committed for trial to the Supreme Court, the Registrar
may
issue an order similarly for him to be brought before the Supreme
Court.
(2) The Superintendent of
the prison shall, on receipt of an order made under this section, act in
accordance therewith and shall
provide for the safe custody of the prisoner
during his absence from the prison for that
purpose.
PROVISIONS
OF THIS PART GENERALLY APPLICABLE TO SUMMONSES AND
WARRANTS
74.
The provisions contained in this Part relating to the issue, service and
execution of summonses and warrants shall, so far as they
may be applicable,
apply to the issue, service and execution of every summons and every warrant of
arrest issued under this
Act.
POWER TO
ISSUE SEARCH
WARRANT
75.
Where it is proved on oath to a magistrate that in fact or according to
reasonable suspicion anything upon, by or in respect of which
an offence has
been committed, or anything which is necessary to the conduct of an
investigation into any offence, is in any building,
ship, aircraft, vehicle,
box, receptable [sic] or place, the magistrate may issue a search warrant
authorising a police officer or
other person therein named to search the
building, ship, aircraft, vehicle, box, receptacle or place, which shall be
named or described
in the warrant, for any such thing and, if anything searched
for be found, or any other thing which there is reasonable cause to
suspect to
have been stolen or unlawfully obtained be found, to seize it and bring it
before the District Court to be dealt with
according to
law.
EXECUTION
OF SEARCH
WARRANTS
76.
(1) A search warrant may be issued on any day, including a Sunday or a public
holiday, and may be executed on any day, including
a Sunday or a public holiday,
between the hours of sunrise and sunset, but the magistrate may by the warrant,
in his discretion,
authorise the police officer or other person to whom it is
addressed to execute it at any
hour.
(2) As soon as practicable
after the execution of a search warrant, the warrant shall be returned to the
District Court endorsed with
details of its execution; the person upon whose
application the warrant was issued shall be responsible for its proper
return.
PERSONS
IN CHARGE OF CLOSED PLACES
TO ALLOW INGRESS THERETO
AND EGRESS
THEREFROM
77.
(1) Where any building or other place liable to search in execution of a search
warrant is closed, any person residing in or being
in charge of that building or
place shall, on demand of the police officer or other person executing the
warrant and on production
of the warrant, allow him free ingress thereto and
egress therefrom and afford all reasonable facilities for a search
therein.
(2) If ingress to or
egress from any building or other place liable to search in execution of a
search warrant is not allowed in accordance
with the last preceding subsection,
the police officer or other person executing the warrant may proceed in the
manner authorised
by sections 12 and 13 of this
Act.
(3) Where any person in or
about any building or place liable to search in execution of a search warrant is
reasonably suspected of
having any article for which search is authorised
concealed about his person, that person may be searched; if that person is a
woman
or girl, the provisions of subsection (4) of section 15 of this Act shall
be
observed.
DETENTION
OF PROPERTY
SEIZED
78.
(1) Where an thing is seized and brought before the District Court under the
provisions of section 76 of this Act, it may be detained
until the conclusion of
the case or the inquiry, reasonable care being taken for its
preservation.
(2) If any appeal is
taken, or if any person is committed for trial, the District Court may order
that anything seized and brought
before it under the provisions of section 76
shall be further detained for the purpose of the appeal or the
trial.
(3) If no appeal is taken,
or if no person is committed for trial, the District Court shall direct that
anything seized and brought
before it under the provisions of section 76 shall
be restored to the person from whom it was taken, unless the Court is authorised
or required by law to dispose of it otherwise or that person consents to its
being disposed of
otherwise.
PROVISIONS
APPLICABLE TO SEARCH
WARRANTS
79.
Where applicable the provisions of sections 64(1) and (3), 66 and 69 of this Act
shall apply to all search warrants issued under
section 75 of this
Act.
BAIL IN
CERTAIN
CASES
80.
(1) Subject to the provisions of section 21 of this Act, where any person, other
than a person accused of murder or treason, is arrested
or detained without
warrant by a police officer or attends or is brought before the District Court
and is prepared at any time while
in the custody of the police officer or at any
stage of the proceedings before the Court to give bail, he may in the discretion
of
the police officer or the Court be admitted to bail with or without a surety
or sureties.
(2) The amount of
bail shall be fixed with due regard to the circumstances of the case and shall
not be excessive.
(3)
Notwithstanding anything contained in subsection (1) of this section, a judge of
the Supreme Court may in any case direct that
any person be admitted to bail
with or without sureties or that the bail required by the District Court or a
police officer be reduced
or any requirement as to sureties be
varied.
RECOGNIZANCE
OF
BAIL
81.
Before any person is released on bail, the District Court or the police officer,
as the case may be, shall take the recognizance
of that person, and of his
surety or sureties, where such is or are required, conditioned for his
attendance at the time and place
mentioned in the recognizance and for his
continuing so to attend until otherwise directed by the Court or police officer,
as the
case may
be.
DISCHARGE
FROM
CUSTODY
82.
(1) As soon as the recognizance, with or without sureties as the case may be,
has been entered into, a person admitted to bail shall
be released and where he
is in prison the Court shall issue an order of release to the Superintendent of
the prison and the Superintendent
on receipt of the order shall release
him.
(2) Nothing in this section
shall be deem to require the release of any person liable to be detained for
some matter other than that
in respect of which the recognizance was entered
into.
DEPOSIT
INSTEAD OF
RECOGNIZANCE
83.
Where any person may be required by the District Court or any police officer to
enter into a recognizance, such Court or officer
may, except in the case of a
recognizance for good behaviour, permit him to deposit as security for his
attendance before a Court
at a time and place specified by the Court or officer
a sum of money to such amount as the Court or officer may fix in lieu of
executing
such a
recognizance.
POWER
TO ORDER SUFFICIENT BAIL WHEN THAT FIRST TAKEN IS
INSUFFICIENT
84.
If, through mistake, fraud or otherwise, insufficient or unfit sureties have
been accepted, or if they afterwards become insufficient
or unfit, the District
Court may issue a summons or a warrant of arrest, as it thinks fit, directing
that the person released on
bail come or be brought before it and may order him
to find sufficient and fit sureties, and if he fails to do so may commit him
to
prison.
DISCHARGE
OF
SURETIES
85.
(1) All or any of the sureties for the attendance of a person released on bail
may at any time apply to the District Court to discharge
the recognizance either
wholly or so far as it relates to the applicant or
applicants.
(2) On such
application being made the District Court shall issue a summons or a warrant of
arrest, as it thinks fit, directing that
the person so released attend or be
brought before it.
(3) On the
attendance of a person pursuant to a summons or warrant issued under this
section, or on his voluntary surrender, the Court
shall direct the recognizance
to be discharged either wholly or so far as it relates to the applicant or
applicants, and shall call
upon the person to find other sufficient sureties and
if he fails to do so may commit him to
prison.
DEATH
OF
SURETY
86.
Where a surety to a recognizance dies before the recognizance is forfeited, his
estate shall be discharged from all liability in
respect of the recognizance but
the party who gave the recognizance may be required to find a new
surety.
ARREST
OF PERSONS GRANTED
BAIL
87.
(1) A police officer may arrest without warrant any person who has been admitted
to bail-
(a) if the officer has reasonable grounds for believing that that person is likely to break the condition that he will attend at the time and place required or any other condition of which he was admitted to bail, or has reasonable cause to suspect that that person is breaking or has broken any such other condition; or
(b) on being notified in writing by any surety for that person that the surety believes that that person is likely to break the first-mentioned condition and for that reason the surety wishes to be relieved of his obligations as a surety.
(2)
A person arrested under the last preceding subsection -
(a) shall, except where he was so arrested within the period of twenty-four hours immediately preceding an occasion on which he is required by virtue of a condition of his bail to attend before the District Court, be brought before that Court as soon as practicable and in any event within twenty-four hours after his arrest; and
(b) in the said excepted case shall be brought before the Court as aforesaid.
(3)
Where a person is brought before the District Court under the last preceding
subsection, the Court may, if of the opinion that
that person has broken or is
likely to break any condition on which he was admitted to bail, commit him to
prison or release him
on his original recognizance or on a new recognizance,
with or without sureties; and, if not of that opinion, it shall release him
on
his original
recognizance.
FORFEITURE
OF
RECOGNIZANCE
88.
(1) Where the District Court has taken a recognizance under this Act, or where a
recognizance has been taken for attendance before
any Court, and it is proved to
the satisfaction of that Court that the recognizance has been forfeited, the
Court shall record the
grounds of such proof and may call upon any person bound
by the recognizance to pay the penalty thereof or to show cause why it should
not be paid.
(2) If sufficient
cause is not shown, the Court shall order the payment of the penalty or, at its
discretion, may remit any portion
thereof and order payment in part
only.
(3) A penalty, or portion
thereof, ordered to be paid under the provisions of the last preceding
subsection shall, for the purposes
of the enforcement of payment and recovery
thereof, including the giving of time for payment, take effect as if it were a
fine, and
the provisions of the Criminal Code relating to fines shall
accordingly apply to any such penalty, or portion thereof, so ordered
to be
paid.
(4) Where any person who has
furnished security is convicted of an offence the commission of which
constitutes a breach of the conditions
of his recognizance, a certified copy of
the judgment of the Court by which he was convicted of that offence may be used
as evidence
in proceedings under this section against his surety or sureties
and, if such a certified copy is so used, the Court shall presume
that that
offence was committed by him unless the contrary is
proved.
(5) Where a sum of money
has been deposited in lieu of executing are cognizance conditional for the
attendance of a person before
a Court, that Court, if the sum of money appears
to the Court to be forfeited, may make an order
accordingly:
Provided that the
Court, upon application made within a period of fourteen days from the making of
such an order by or on behalf of
the person who has deposited the sum of money,
may in its discretion cancel or mitigate the
forfeiture.
APPEAL
FROM AND REVISION OF
ORDERS
89.
Any orders made under the last preceding section by the District Court shall be
appealable to, and may be revised by, the Supreme
Court under the Appeals Act
1972.
OFFENCE
TO BE SPECIFIED IN CHARGE OR INFORMATION WITH NECESSARY
PARTICULARS
90.
Every charge or information shall contain, and shall be sufficient if it
contains, a statement of the specific offence or offences
with which the accused
person is charged, together with such particulars as may be necessary for giving
reasonable notice of the
nature of the offence
charged.
JOINDER
OF COUNTS IN CHARGE OR
INFORMATION
91.
(1) Any offences may be charged together in the same charge or information if
the offences charged are founded on the same facts
or form, or are part of, a
series of offences of the same or a similar
character.
(2) Where more than one
offence is charged in a charge or information, a description of each offence so
charged shall be set out in
a separate paragraph of the charge or information
called a count.
(3) Where, before
trial or at any stage of a trial, the Court is of opinion that an accused may be
embarrassed in his defence, by
reason of being charged with more than one
offence in the same charge or information, or that for any other reason it is
desirable
to direct that the person be tried separately for any one or more
offences charged in a charger information, the Court may order
a separate trial
of any count or counts of that charge or
information.
JOINDER
OF TWO OR MORE ACCUSED IN ONE CHARGE OR
INFORMATION
92.
(1) The following persons may be joined in one charge or information and may be
tried together, namely
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;
(c) persons accused of more offences than one of the same kind, that is to say, offences punishable with the same amount of punishment under the same section of the Criminal Code or of any other written law, committed by them jointly within a period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of any offence under Chapters XXXVI to XLIV, inclusive, of the Criminal Code, and persons accused of receiving or retaining property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment or of attempting to commit either of such offences.
(2)
Where, before trial or at any stage of a trial, the Court is of opinion that the
interests of justice require that one or more
of several accused who are
included in the one charge or information be tried separately from the others,
it may so order and separate
trials shall thereupon be held as
ordered.
RULES
FOR THE FRAMING OF CHARGES AND
INFORMATIONS
93.
The following provisions shall apply to all charges and informations and, not
withstanding any rule of law or practice, a charge
or information shall, subject
to the provisions of this Act, not be open to objection in respect of its form
or contents if it is
framed in accordance with the provisions of this Act
-
(a) Mode in which offences are to be charged -
(i) a count of a charge or information shall commence with a statement of the offence charged, called the statement of offence;
(ii) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and, if the offence charged is one defined by a written law, shall contain a reference to the section of the written law defining the offence;
(iii) after the statement of the offence, particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:
Provided that where any rule of law or any written law limits the particulars of an offence which are required to be given in a charge or information, nothing in this sub-paragraph shall require any more particulars to be given than those so required;
(iv) the forms set out in the Schedule to this Act or forms conforming thereto as nearly as may be shall be used in the cases to which they are applicable;
(v) where a charge or information contains more than one count, the counts shall be numbered consecutively;
(b) Provisions as to statutory offences -
(i) where a written law defining an offence states the offence to be the doing or the omission to do any one of a number of different acts in the alternative, or the doing or the omission to do any act in any one of a number of any different capacities, or with anyone of a number of any different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities, intentions or other matters stated in the alternative in the written law may be stated in the count charging the offence;
(ii) it shall not be necessary, in any count charging an offence defined by a written law, to negative any exception from, or proviso or qualification to, the operation of the written law defining the offence;
(c) Description of property –
(i) the description of property in a charge or information shall be in ordinary language and such as to indicate with reasonable clarity the property referred to and, if the property is so described, it shall not be necessary, except where required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property;
(ii) where the property is vested in more than one person and the owners of the property are referred to in a charge or information, it shall be sufficient to describe the property as owned by one of those persons by name with others, and if the persons owning the property are a body of persons with a collective name, such as a firm or "inhabitants", "trustees", "club" or other such name, it shall be sufficient to use the collective name without naming any individual;
(iii) property belonging to or provided for the use of any public establishment or department may be described as the property of the Republic;
(iv) coin and bank or currency notes of Nauru or of any foreign country may be described as money and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of the amount of money, whether coin, bank note or currency note even though the particular species of coin or note of which that amount was composed is not proved and, in cases of stealing, embezzling and obtaining by false pretences, by proof that the accused person dishonestly appropriated or obtained any coin, bank note or currency note, or any portion of the value thereof, even though that coin, bank note or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering it or to some other person and that part has been returned accordingly;
(d) Description of persons –
The description or designation in a charge or information of the accused, or of any other person to whom reference is made therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name or his abode, style, title or occupation; and, if, owing to the name of the person not being known or for any other reason, it is impracticable to give such a description or designation, a description or designation shall be given such as is reasonably practicable in the circumstances, or the person may be described as "a person unknown";
(e) Description of documents -
Where it is necessary to refer to any document or instrument in a charge or information, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out any copy thereof;
(f) General rule as to description -
Subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any charge or information in ordinary language in such a manner as to indicate with reasonable clarity the place, time, thing, matter, act or omission referred to;
(g) Statement of intent-
It shall not be necessary in stating any intent to defraud, deceive or injure to state an intent to defraud, deceive or injure any particular person, where the written law defining the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence;
(h) Mode of charging previous convictions -
Where a previous conviction of an offence is alleged in a charge or information, it shall be alleged at the end of the charge or information by means of a statement that the accused has been previously convicted of the offence at a certain time and place without stating the particulars of the offence;
(i) Use of figures and abbreviations -
Figures and abbreviations may be used for expressing anything which is commonly expressed thereby;
(j) Gross sum may be specified in certain cases of stealing-
Where a person is charged with stealing, it shall be sufficient to specify the gross amount of property alleged to have been stolen and the dates between which the stealing is alleged to have been committed without specifying particular times or exact dates.
PERSON
CONVICTED OR ACQUITTED NOT TO BE TRIED AGAIN FOR SAME
OFFENCE
94.
A person who has been once tried by a Court of competent jurisdiction for an
offence and convicted or acquitted of that offence shall,
while such conviction
or acquittal has not been reversed or set aside, not be liable to be tried again
on the same facts for the
same offence or any offence in respect of which he
could have been convicted on the charge, or any count of the charge, of which
he
was acquitted and, if required by any Court to plead to an information or charge
in respect of such an offence, may, instead of
pleading to the information or
charge, plead that he has already been convicted or acquitted of that offence,
and the Court shall
thereupon try whether that plea is true and only if it finds
the plea to be untrue shall the Court require him to plead to the information
or
charge or to the count relating to that
offence.
PERSON
MAY BE TRIED AGAIN FOR SEPARATE
OFFENCE
95.
A person convicted or acquitted of an offence may afterwards be tried for any
other offence with which he might have been charged
on the former trial under
subsection (1) of section 91 of this Act, except an offence of which he could
have been convicted on any
charge, or any count of the charge, in respect of
which he was
acquitted.
CONSEQUENCES
SUPERVENING OR NOT KNOWN AT TIME OF FORMER
TRIAL
96.
A person convicted of any act causing consequences which together with that act
constitute a different offence from that of which
he was convicted, may be
afterwards tried for that different offence if the consequences had not
happened, or were not known to the
Court to have happened, at the time when he
was
convicted.
WHERE
ORIGINAL COURT WAS NOT COMPETENT TO TRY SUBSEQUENT CHARGE
97.
Subject to the provisions of section 16 of the Criminal Code, a person convicted
or acquitted of any offence constituted by any acts
or omissions may,
notwithstanding such conviction or acquittal, be subsequently charged with and
tried for that or any other offence
constituted wholly or in part by the same
acts or omissions, if the Court by which he was first tried was not competent to
try the
offence with which he is subsequently
charged.
HOW A
PREVIOUS CONVICTION MAY BE
PROVED
98.
(1) In any trial or other proceeding under this Act, a previous conviction in
Nauru may be proved by a copy of the sentence or order
certified as such under
the hand of the Registrar or Clerk, as the case may be, of the Court in which
the conviction was had together
with evidence as to the identity of the accused
person with the person so convicted, or by any other mode provided by any law
for
the time being in force.
(2) A
certificate in the form prescribed by the Minister given under the hand of a
person appointed by the Minister in that behalf
who shall have compared the
fingerprints of a person previously convicted shall be
prima
facie evidence of all facts therein set
forth, provided that it is produced by the person who took the fingerprints of
the accused. <