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Republic v Engar [1989] NRSC 6; [1980-1989] NLR (6 June 1989)

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

IN THE SUPREME COURT OF NAURU

CRIMINAL CASE NO. 5 OF 1989

THE REPUBLIC

vs.

CHRISTOPHER ENGAR

2nd June, 1989

DECISION

1. No intent established on depositions - both accused and deceased agreed to fight. Had 3 previous fight. Fact that accused went to deceased's house for final fight, no evidence of intention to kill. Subsequent fight resulted in no serious injury to body apart from head. No fractures. Both men fought willingly.

2. No doubt death caused by accused pushing deceased to ground hitting head. Doctor's conclusion accepted

3. Manslaughter.

Sentences:

1. Manslaughter very serious charge and in most cases demands imprisonment.

2. In the public interest that the taking of a life be so treated particularly if the crime affects the community of Nauru.

3. In this case, two unusual and special circumstances:

(a) Accused killed his brother in tragic circumstances. Clearly both had been quarrelling that night and had had three fights and both were willing participants. They agreed that their last fight would not include karate. They were both under influence of alcohol.

(a) Brother accepted accused's challenge. It was a family fight.

(b) Accused's mother has come to Court and pleaded on oath for her son's liberty. She spoke on behalf of all the accused's family who asked her to come to Court. They had all forgiven the accused and wanted him returned to his family. I was very impressed by this plea.

4. Counsel stresses it was not a heinous crime and in the special circumstances, custodial sentence is not appropriate.

5. This matter has not 'affected anybody other than the family of the accused. It is a family problem not extending outside the family. I believe that! a custodial sentence is not in the public interest. The accused has to live for the rest of his life in the knowledge he killed his brother. He has the forgiveness of those who matter most in this case - his family. I think public interest in this special case is best served by according to his family's plea and returning him to them. It is a very special case.

Convicted and adjourned for two years to be brought before the Court for sentence before then if:

(a) he drinks alcohol;

(b) is not of good behaviour.

If not brought before Court before two years, he will be discharged.'

The above is a transcript of my notes.

CHIEF JUSTICE.

6th June, 1989