IN THE SUPREME COURT OF NAURU		Miscellaneous Proceedings No. 51 of 2021
AT YAREN						
CRIMINAL JURISDICTION 	

BETWEEN						

JAKE SCOTTY					Applicant

AND

THE REPUBLIC					Respondent	

Before:					Khan, ACJ
Date of Hearing:			10 February 2022
Date of Ruling:			15 February 2022

Case is to be known as:   Scotty v Republic	 

CATCHWORDS:	Bail application – Whether the applicant is entitled to make any number of applications for bail – Whether the applicant has established exceptional circumstances as required by s.4B of the Bail (Amendment) Act 2020.

APPEARANCES:	

Counsels for the Applicant:		F Akubor and D Aingimea		
Counsel for the Respondent:		S Shah

RULING

INTRODUCTION

1.	The applicant is charged with one count of intimidating or threatening a police officer contrary to s.77A of the Crimes Act 2016.  
  
2.	I heard his bail application on 29 December 2021 and delivered my ruling on 5 January 2022 dismissing his application as he had failed to establish “exceptional circumstances” under s.4B of the Bail (Amendment) Act 2020 (the Act).  

FRESH APPLICATION

3.	On 4 February 2022 the applicant made a fresh application for bail and in support of his application he referred to the matters which were within his knowledge but were not referred to in his previous application. 

4.	In his previous application his sole reason for seeking bail was the welfare of his pets which I held was not “exceptional circumstances”.  Despite being given time to amend his affidavit he chose not to do so and now addresses the court on the facts that he is employed as an assistant surveyor with the Department of Land and Survey;  and he also owns a company called Francis Jake Security Services (FJSS) which provides security and cleaning services to the Government of Nauru and employs 15 people of which 10 are male employees who provide security services, and 5 are female employees who are cleaners to the CRC Building in Yaren District.  Each of his employees is paid $300 per week salary and his contract with the Government has been in existence since 2016 and is due for renewal at the end of this month. 

5.	He stated that because of his remand in custody he has had difficulty in paying his employees salary and has had to rely on his mother for assistance and has at times processed payments on line through Bendigo Bank from the Correctional Centre for the employees who have bank accounts; and notwithstanding all this there has been delays in payments of salary to the employees.  Because of the inconsistency in payment of the salary, one of his employees has had to resort to diving to maintain his family.  
  
6.	In an affidavit filed in support by Mason Dick, who is the applicant’s nephew and the supervisor of FJSS, he deposes that the applicant as an employer has to submit the timesheets and daily work report to the Government and that the applicant has to personally vouch for the authenticity of the reports for the payment to be paid into his account; and because of his remand he has been unable to do so. 

7.	This application for bail is being opposed by the Republic and Sgt Liberty filed an affidavit in which she deposed that the failure of the applicant to attend to his business whilst remanded in custody and his failure to attend to the payment of the employee’s salary does not in itself constitute “exceptional circumstances”; and if it were so then every businessman would use that as a means or excuse to obtain bail when charged for similar offences.  

WHETHER THE APPLICATION IS COMPETENT?

8.	Mr Shah raised an issue as to whether this application is competent and he relied on s.18(4) of the Bail Act 2018 (2018 Act) which provides:  

	“Where a court refuses bail, the court shall remand the accused person in custody to reappear before that or another Court for trial or review of bail within 14 days from the date of refusal or review.”

9.	He submits that this application is outside of the 14 days, and thus the application is incompetent.   The 2018 Act allows an accused to make any number of fresh applications. I discussed that in The Republic v Tsiode and Others and I stated at [16] as follows: 

[16]	The 2018 Act makes very interesting provisions – after bail is refused it allows any number of fresh applications to be made, and of course this can only be done if there is a change in circumstances; and at the same time, it allows for bail granted or refused is ‘appealable’ to the Court of Appeal.  The fact that this Act allows any number of applications to be made means as Mr Clodumar submitted that the ruling by Jitoko CJ was a ‘conditional’ ruling and not a final ruling.

10.	To provide further clarity I set out the provisions of s.15 of the 2018 Act which states:  

General Provisions as to Court Bail

1)	Subject to subsection (3) and section 31(4), an accused person may make any number of applications to a court for bail.  
  
2)	An application to a court for bail shall be dealt with as soon as reasonably practicable after it is made. 

3)	A court may refuse to entertain an application for bail if it is satisfied that the application is frivolous or vexatious. 

11.	As can be seen from the provisions of s.15 an accused person is allowed to make any number of applications and a court can only refuse an application if it is satisfied that it is frivolous or vexatious.  Apart from making fresh applications under s.15 an accused can also request a court to review its decision and the provision of the review is set out in s.31 where it is provided: 

Power to Review

1)	A Resident Magistrate may review any decision made by a police officer in relation to bail.  
  
2)	A Resident Magistrate may review a decision made by another Resident Magistrate, including a reviewing Resident Magistrate, in relation to bail. 

3)	The Supreme Court may review any decision made by it, by a Resident Magistrate or by a police officer in relation to bail. 

4)	The Nauru Court of Appeal may review any decision made by it in relation to bail. 

5)	A Court which has power to review a bail determination, or to hear a fresh application under s.15(1), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of a fresh application, refuse to hear the review or application. 

6)	The power to review a decision under this Part in relation to an accused person may be exercised only at the request of the: 

a)	accused person; 

b)	police officer who instituted proceedings for the offence of which the person is accused; 

c)	Secretary for Justice; 

d)	Director of Public Prosecutions; or

e)	 victim of the offence.   

7)	The power to review a decision under this Part includes the power to confirm, reverse or vary the decision.
  
8)	The review shall be by way of a re-hearing, and the evidence or information given or obtained on making of the decision may be given or obtained on review.

12.	At the hearing of the application, Mr Shah conceded, and rightly so, that the application was properly made and therefore is competent.  

APOLOGY LETTER
  
13.	On 3 January 2022 the applicant wrote a letter of apology to the complainant, Constable Kanisha Dube.  In his letter he stated as follows: 
                                                                                                3/1/22
To: Mrs Kanisha Dube
                       Aiwo District
             Nauru

Re:  Letter of Apology (18 December 2021)

I write in seeking a few moment of your time and I wish to sincerely apology for the misunderstanding that occurred between us on 18 December 2021. 

 My intent was to help out with the situation and I sincerely hope that you accept my apology, clearing up the matter between us.
  I thank you, for your time. 
 Sincerely 
Jake Scotty. 

Cc Director of Public Prosecutions, 
Public Defender, 
Registrar of the Nauru Court House  
  
14.	On 4 January 2022 the complainant accepted the applicant’s apology and sent a letter to him which was received by the court after the ruling was delivered and the letter states as follows: 

4 January 2022

To Whom it May Concern

I, Mrs Kanisha Dube, say that in regard to the incident between Jake Scotty and myself on 18th December 2021.  Jake has apologised to me by letter and I have accepted his apology.  

Mrs Kanisha Dube.

cc.   
Director of Public Prosecutions, 
Public Defender 
Registrar of Nauru Court House. 

CONSIDERATION
  
15.	The applicant’s counsels submitted that Constable Kanisha Dube, the complainant, is in police protective services; and in the charge she is described as a constable whereas “police officer” is defined in s.3 of the 2018 Act as follows: 

means a police officer of the rank of sergeant or above, and any reference to the police office is a reference to any police officer of sergeant or above.  
  
16.	They submitted that the complaint being only a constable she does not fall within the ambit of the definition of the “police officer” as provided for in s.3 and s.4(b)(iv) of the Act which includes a charge of: 

Intimidating or threatening a police officer in the execution of the police officer’s duties.
 
17.	Their submissions on that issue is that she does not fall within the ambit of the definition of a “police officer” as provided for in s.3 and therefore “exceptional circumstances” does not apply to the applicant in seeking bail.  
  
18.	Mr Shah disagrees with the applicant’s counsels’ interpretation of “police officer” and submitted that under the Nauru Police Force Act 1972 the complainant being a constable or a non-commissioned officer or a reserve officer is defined as a “police officer”.  

19.	When I questioned Miss Akubor as to whether s.3 is to be read in conjunction with s.9 of the 2018 Act, she conceded that the two sections have to be read together, however, she maintained that the complainant did not fall within the definition of a “police officer” under s.3.  

20.	Police officer is further defined and clarified in s.3(2) of the 2018 Act where it is stated as follows: 

(2)	In this Act a reference to ‘police officer’ in ‘court’ means the police officer who or the court which granted bail or is considering granting bail to a person under this Act.

21.	In light of the provisions of s.3(2) the applicant’s counsels submissions on the definition of “police officer” has no merit and is rejected and the applicant is still required to establish “exceptional circumstances" before bail can be granted to him.  
  
22.	I stated in Tamaki v Republic that Parliament did not provide any clarity as to what would constitute “exceptional circumstances” and I further stated at [25] that the courts in other jurisdictions have equally struggled to define exceptional circumstances and in DPP v Cozzi Coldrey J stated: 

“The concept of exceptional circumstances is, itself, an illusive one.  …” (Emphasis added mine)

And I further stated at [26] that:  

“Similarly, in Commonwealth Director of Public Prosecutions v Banda[10] which was, like Nguyen, a Director's appeal, the Magistrate, in finding exceptional circumstances, took into account the family situation and the personal situation of the respondent, including his primary role in caring for his mother, a significant role in caring for a surrogate father with serious health problems, his provision of financial support for a former partner looking after their intellectually handicapped daughter, work commitments, a strong attachment to the State and a lack of any unacceptable risk that the respondent may abscond and/or commit further offences as relevant factors, quite apart from potential delay or the principle of parity. The Judge was not persuaded that the Magistrate's decision that there were exceptional circumstances was manifestly wrong. In the case of In the Matter of an Application for Bail by Andrea Mantase[11] such factors as lack of any prior criminal history, constant employment, an unlikelihood of absconding and the personal situation of the applicant's wife who had recently had a miscarriage, were factors which, together with likely delay, were found to constitute exceptional circumstances.”

23.	In Republic v Agege  Fatiaki CJ stated: 

“… for instance, family hardship and loss of employment are the usual consequences of the remand of a sole breadwinner, therefore in order to qualify as an “exceptional circumstance”, the consequences to the individual and his family must be unusually hard bordering on destitution and starvation.”

24.	In the absence of any clarity provided in the Act as to what is the meaning of “exceptional circumstances” it can be seen that even the Courts in this jurisdiction are struggling to define “exceptional circumstances”.  In Tamaki I had discussed that “work commitments” amongst others may constitute exceptional circumstances whereas Fatiaki CJ in R v Agege stated that loss of employment in itself may not constitute exceptional circumstances unless it borders on destitution or starvation. 

25.	The Minister for Justice in his speech in Parliament when introducing the amendment bill stated: 

“…In the proposed Bill, a third category is included which allows for an accused person to be remanded in custody, unless the person charged is able to demonstrate exceptional circumstances as to why he or she should be granted bail.  Appropriate amendments will also be made to the Criminal Procedure Act for this list of cases to be heard expeditiously.  A period of 3 months is allocated for this.  After a lapse of 3 months, an accused person who is remanded and whose trial has not begun, may apply for bail which in many cases the court may grant on grounds of delay in trial.  For the purposes of demonstrating exceptional circumstances, the legislation makes it clear that hardship is not one of them.”

26.	The applicant is a person of good character. He has an unblemished record. He has been providing cleaning and security services to the government for the last 6 years and provides employment to 15 people at a salary of $300 per week. 
  
27.	The applicant’s “work commitment” may in itself constitute “exceptional circumstances” as his continued remand has the possibility of him being unable to obtain an extension of his contract with the Government, which as I stated earlier is due to expire at the end of this month (February 2022) and thus leave 15 people unemployed who will not be able to obtain any assistance from the Government by way of unemployment benefit and therefore exposing themselves and their family members to grave financial hardship. 
  
28.	The Minister in his speech had stated that appropriate amendments were going to be made to expedite trials, but no such amendments have been made to date.  Under s.4B(5) of the Act the applicant is entitled to be granted bail without the need to establish “exceptional circumstances” if the trial has not commenced within 3 months (90 days) and he has already spent 60 days in custody and and there being no Magistrate on the Island as of now;  and even with the appointment of the second Resident Magistrate who is yet to arrive, and it is not known as to when he will arrive, and further delay being compounded by Covid 19 pandemic it is unlikely that his trial will commence in the next 30 days.   

29.	The Minister for Justice further stated in his speech and I quote that: 

“The proposed amendment is carefully drafted to ensure there is a balance between the protection of the victim as well as the community and that of the right of the accused person to be treated as innocent until proven guilty.  This balancing act is to avoid the deprivation of a person’s right to liberty unnecessarily.” 

CONCLUSION 

30.	For the reasons given above, I am satisfied that having taken into account all the matters, the applicant has established exceptional circumstances.  He is granted bail in the sum of $500 in his own recognisance with a surety for like sum with the condition that he should report to the Nauru Police Station on every Fridays between 6am to 6pm and that he should surrender his passport to the court. 

DATED this 15 day of   February 2022

Mohammed Shafiullah Khan
Acting Chief Justice