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Republic v Wabeiya [1989] NRSC 4; [1980-1989] NLR (4 August 1989)

[1980-1989] NLR
[Ed – No page no. in original]

IN THE SUPREME COURT OF NAURU

CRIMINAL CASE NO. 4 OF 1989

THE REPUBLIC

vs

ROLANDO WABEIYA

DECISION OF DONNE, CHIEF JUSTICE

I have considered the submissions of counsel for the accused. The Republic has elected to make no submissions.

There is no question but that section 167 of the Criminal Procedure Act 1967 was breached by the District Court and I have held that evidence taken by it in the preliminary inquiry at those hearings to which the inquiry was adjourned for a period in excess of thirty days could not be lawfully received by the Court by reason of the non-compliance with the section.

Counsel for the accused raised this point prior to the trial commencing in the Supreme Court and has submitted that the case should either be remitted under section 181 of the Act or should be proceeded with in the Supreme Court on the basis of the evidence of those witnesses not excluded by my Order.

As I read the section 181, a case can be remitted thereunder if the charges originally laid are within the jurisdiction of the District Court and may be suitably tried therein. The case here is certainly not one of that class and I am satisfied it cannot be remitted under the section.

There appears to be no express provision in the Act for the judge, after considering the depositions, to direct that the accused be not arraigned and that he be discharged. However, section 187 provides that subject to express provisions in the Act, the practice of the Supreme Court in its criminal jurisdiction shall be such as the Court directs. Now this committal was made on depositions, some of which could not lawfully have been considered by the District Court. I consider it was thereby wrongly made. It seems to me that the interests of justice require that the case should be remitted to the District Court to be reconsidered on those depositions only which could properly have been receivable by the Court, i.e. those receivable in compliance with section 167.

As to the charges in the Supreme Court, they have been filed on a case wrongfully made out. Section 180 of the Act provides for the laying of such charges as are disclosed in the certified case. If the depositions therein or any of them are not lawfully receivable, clearly any charges in pursuance of them cannot lawfully be laid. The charges here, although laid, have not been received by the Court since the trial has not been commenced. It seems, therefore, that being improperly laid, they should be withdrawn. If on a reconsideration of the case, the District Court commits the accused for trial, the Director of Public Prosecutions would be required to comply with section 180 in relation to that committal.

The case is hereby remitted to the District court for reconsideration by way of preliminary inquiry under Part VII of the Act and in such inquiry, the Court shall exclude in its consideration those depositions which were taken at those hearings not complying with section 167 of the Act.

GAVEN DONNE
CHIEF JUSTICE

4/8/89