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Republic v Timothy [2025] NRSC 64; Criminal Case 4 of 2023 (7 November 2025)

IN THE SUPREME COURT OF NAURU
AT YAREN

[CRIMINAL JURISDICTION]

Criminal Case No. 04 of 2023


BETWEEN: THE REPUBLIC

PROSECUTION


AND: MAYSWOOD TIMOTHY
1st ACCUSED

DAICOS GRUNDLER

2nd ACCUSED


BEFORE: Keteca J


Date of Submissions: 8/9th September 2025


Date of Ruling: 07th November 2025

Case may be cited as: Republic v Mayswood Timothy & Daicos Grundler

Catchwords: Application for No Case to Answer, Section 201, Criminal Procedure Act 1972
Appearances:


Counsel for the Prosecution: Saif I. Shah
Counsel for the Accused: Shantel Hazelman


RULING

BACKGROUND

  1. The accused persons are charged with the following offences:

COUNT 1

Statement of Offence

CAUSING HARM TO A POLICE OFFICER: Contrary to Section 77(a)(b)(c) (ii) of the Crimes Act 2016. (the Act)

Particulars of Offence

Mayswood Timothy on the 24th of July 2022, at Meneng District in Nauru, intentionally engaged in conduct, that is, punched Constable Conway Detabene, and the conduct caused harm to Constable Conway Detabene without his consent and that Mayswood Timothy intended to cause harm to Constable Conway Detabene because Mayswood Timothy believed that Constable Conway Detabene is a police officer and that Constable Conway Detabene is in fact a police officer.


COUNT 2

Statement of Offence

ASSIST IN ESCAPE FROM LAWFUL CUSTODY: Contrary to Section 231(a)(ii) & (b) of the Crimes Act 2016.


Particulars of Offence

Daicos Grundler on the 24th of July 2022, at Meneng District in Nauru, assisted Mayswood Timothy to escape from lawful custody and intended to assist Mayswood Timothy to escape.


SUBMISSIONS FOR THE ACCUSED PERSONS

  1. Counsel for the accused persons submits:
    1. Republic v Jeremiah [2016] NRSC 42; where Crulci J said at paragraphs [21]-[22]- the guidelines are:
      1. If there is no evidence to prove an element of the offence.. the defendant has ‘no case to answer;
      2. If the evidence before the court has been so manifestly discredited.... that no reasonable tribunal could convict upon it, the defendant has no case to answer;
      3. If the evidence.. could be viewed as inherently weak, vague or inconsistent.. the matter should proceed ... and the submission ... be dismissed.
    2. Section 8 of the Act defines ‘harm’ and physical harm.’
    3. Count 2- Assist in escape from lawful custody
      1. Intervention by the police was unlawful and there is no lawful arrest
      2. The prosecution’s case show that the police officers entered the backyard of Nofi’s residence for a noise/ mass gathering complaint but-
        • Gave no warnings before seizing property and persons
        • Did not know or apply the operative COVID Gazette (20th July 2022) which did not prohibit the gathering in question
        • The police did not arrest Timothy, the 1st accused at any time.
    4. PW1- SGT Brando
      • Q- At no time did any of you inform Mayswood that he was under arrest?
      • A- Ye we never arrest him on that time
      • Court- For the whole episode when you arrived, you saw Conway, they argued over the speaker- do you confirm that he was never under arrest?
      • A- No he was not under arrest
    5. PW3- Conway Detabene
      • Q- Was Mayswood under arrest?
      • A – No
      • Court- Before he punched you, did he commit an offence for you to arrest him?
      • The music box
    6. PW2- Shane Brechtefeld
      • Q- When you arrived at Nofi’s house, what happened?
      • A – I arrived and approached Mayswood. I advised him that we were going to arrest all of them, all the drunkards.
      • Q – What was the reason?
      • A – The reason is because there is a Covid and we following instructions for mass gathering that’s the report we receive.’
      • Counsel submits that the above exchange shows that PW2- Shane Brechtefeld did not know the law in force, nor the offence or the ‘reasonable necessity’ under Section 270.
    7. Cross- Examination of PW2
      • Q-Your role included enforcing the Gazette orders that were in force at that time?
      • A- Yes
      • Q- What did the Gazette Order prohibit?
      • A- During the Covid, I think not to allow to gather 10 plus people
      • Q- Did you review the Gazette Order before going to Meneng?
      • A- No
      • Q- The Gazette order of 20th July 2022... allowed any social gathering at any private residence of not more than 20 people- were you aware of this?
      • A- No
      • Q- You said arriving there was 10 plus individuals- you agree that you had not enquired the individuals there were part of the household?
      • A- No
      • Q- You agree you had not established the purpose of the gathering?
      • A- No
      • Q- You did not tell them of the law they were breaching because you did not know what the law required?
      • A- Yes
      • Q- You agree- you did not know whether the group in front of you were actually committing an offence?
      • No
      • Counsel submits that the above exchange shows that the Officer did not know whether any offence has been committed.
      • Section 270 of the Crimes Act provides that the arresting officer has reasonable grounds that ‘the person has committed an offence and the arrest was reasonably necessary.’
    8. Section 11(1) Criminal Procedure Act 1972 (CPA-1972)
      • Under Section 11(1) CPA- 1972, ‘an arrest requires actual touching/ confinement (unless there is submission)
      • There was no touching, confinement or submission here
  2. Principles Governing Arrest and Custody

‘. There can be no doubt that in ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person's liberty is being restrained, he is entitled to know the reason. If the police fail to inform him, the arrest will be held to be unlawful, with the consequence that if the police are assaulted as the suspect resists arrest, he commits no offence...’

.. a citizen is entitled to know on what charge or on suspicion of what crime he is seized.’

‘ .. the mere fact that an arresting officer has been instructed by a superior to effect the arrest is not capable of amounting to reasonable grounds..’

‘In making an arrest the person making it shall actually touch or confine the body of the person to be arrested.’

  1. Was the Accused in ‘lawful custody?
  2. COUNT 1- Causing Harm to a Police Officer
  3. Evidence of ‘harm’ is absent or at best vague’
  4. Residual possibility- ‘physical contact to which a person might reasonably object’
  5. Threshold of ‘reasonably objected to’ not crossed

The contact only arose ‘after the police grabbed Timothy’s shirt and restrained him from behind. The strike falls within the exclusion in Section 8(b): ‘force acceptable .. incidental to life in the community’ especially where it is a reflex to unlawful force.


  1. Sequence of the Alleged Punch- Irreconcilable Contradictions

The main allegation in Count 1 is that Timothy ‘intentionally caused harm by punching Constable Conway. The timing of the punch is critical. The prosecution’s own witnesses provide irreconcilable versions.

Officer Brando’s Evidence (PW1) (Cross & Statement)

Officer Brando’s version is unequivocal: the punch was thrown after Timothy had already been seized by both officers


  1. Officer Conway’s Evidence (PW3) (In – Chief vs Statement)

Evidence in Chief:

According to Conway, Counsel submits- the punch came first then Officer Brando restrained him.


Cross/ Statement:

Q- Isn’t it correct you recorded: ‘You’re just hiding behind your police uniform. I tried to hold him and Const Brando came and lock him from the back, so while Const Brando hold him from the back I pulled his arm and he threw a fist punch to my face...’ Agree that is in your statement?

A- Yes

Q- So wouldn’t you agree that punch he threw was after he was restrained?

A- No

Const Conway contradicts his own statement. His statement records the punch after restraint, consistent with Brando’s account. His oral evidence says it came before.

Brando & Conway’s statement: the punch was thrown after the two Officers restrained Timothy.

Conway in -chief- : the punch was thrown before restraint.


  1. Applying R v Jeremiah:

SUBMISSIONS BY THE PROSECUTIONS

  1. Counsel for the State submits as follows:

Q- Did you remember what you said to Officer Conway on the 24th of July 2022, at around 1000 hours onwards; when he told you that you will be arrested?

Ans- I don’t recall that, but I recall that Conway said to me the speaker has to be taken, so I refused Conway

Q- Did you punch Constable Conway on his facial area when he was arresting you?

Ans- Yes

Q- How many times did you punch officer Conway on his facial area when he tried to hold you?

Ans- Yes, only one punch

Q- Where did you run to after you managed to escape from Officer Brando and Conway?

Ans- I ran to Meneng Hill

● PW2- Shane Brechtefeld- he saw Officer Brando holding onto Mayswood. He saw Daicos Grundler push Officer Brando.
● PW3 – Conway Detabene- the drunkards were warned about a noise complaint. He approached them and told them that he will be taking their music box.
● Mayswood approached him ‘and held onto the music box.’ Mayswood told him that “he was using the uniform.’ He pulled on the music box so hard that Mayswood threw a punch at him on the left side of his face. He was still standing. Officer Brando then ‘held onto Mayswood and locked him from behind.’
  1. Was Mayswood under Arrest? Counsel submits:

‘ One approach is that a person is arrested if, as a result of what is said or done, the person is under compulsion and is not free to go ( Alderson v Booth [1969] 2 QB 216; Inwqood ( 1973) 57 Cr App R 529; Spicer v Holt [1977] A 987) Arrest is an ordinary English word, and whether or not a person has been arrested depends not on the legality of the arrest but on whether the person has been deprived of liberty to go where he or she please ( Lewis v Chief Constable of the South Wales Constabulary [1990] EWCA Civ 5; [1991] 1 All ER 206). A second approach is that context and purpose are relevant.’

PROSECUTION CASE on COUNT 2

  1. The elements for Count 2- Assist in Escape from Lawful Custody: Contrary to Section 231(a)(i)(b) of the Act are:

(b) intends to assist Mayswood to escape.


  1. Counsel for the accused submits that since Timothy Mayswood was not in lawful custody, the 2nd accused, Daicos Grundler, has no case to answer. This is based on Republic v Jeremiah [2016] NRSC 42; where Crulci J said:

‘ i. If there is no evidence to prove an element of the offence alleged to have been committed, the defendant has no case to answer.


  1. PW1 Sgt Brando Tabaia testified as follows:
  2. On Cross- Examination:
  3. On Re- Examination:
  4. On being questioned by the Court, PW1 Sgt Brando said- ‘Mayswood was never arrested.’
  5. PW2- PC Shane Brechtefeld testified that:
  6. Cross -Examination:
  7. PW3- Constable Conway Detabene testified that:
  8. Cross -Examination.
  9. Re- Examination
  10. Court

CONSIDERATION

  1. What was the report received by PW1, PW2 and PW3?
  2. As regards the evidence on the report and instructions received by the police officers, I get a different impression as that of CJ Fatiaki in the R v Agege case where at paragraph 78 of his judgment, he said:

‘If I may say so, I got the distinctly unfavourable impression after listening to the police officers involved in this case, that it was sufficient for their purposes that they received directions from their superiors to locate and arrest the suspect and they, personally, did not need to know why the order to arrest the suspect had been given. In other words, blind obedience to a superior order is enough.’

In this case there were no suspects. As the Prosecution evidence showed, no offence had been committed. Thus, Mayswood Timothy was not under arrest.


  1. What is the alleged offence committed by the group at Meneng?
  2. I note that there is an offence of causing excessive noise on a public road under Section 16 (1) (i) of the Naoero Roads Act 2017. There is also the offence of public nuisance under Section 248 of the Crimes Act 2016. The police officers that gave evidence in the present case did not refer to any offences at all. In any event, the gathering which the two accused persons were part of in the present case was not in a public place. They were at a private residence.
  3. Was Timothy Mayswood lawfully arrested?
  4. As in paragraph [14] above, the elements for Count 2- Assist in Escape from Lawful Custody: Contrary to Section 231(a)(i)(b) of the Act are:

(b) intends to assist Mayswood to escape.


  1. All the prosecution witnesses testified that Mayswood was not under arrest. At paragraph 118 of CJ Fatiaki’s judgment in the R v Agege case, he said:

‘ .. in Dillon v The Queen [1982] AC 484 (PC) where a police constable was charged with permitting a prisoner to escape from the station lock -up, the Privy Council in quashing his conviction cited with approval a passage from Hawkin’s Pleas of the Crown 7th edn. (1795) Vol 3, p 252 where the learned author considers what shall be judged an ‘ escape’ and states, inter alia the following rules:

Section 1- First there must be an actual arrest;..

Section 2: Secondly, as there must be an actual arrest, such arrest must also be justifiable. There Lordships added:

‘ ... it is essential for the Crown to establish that the arrest and detention were lawful and that the omission to do so was fatal to the conviction of the defendant...The lawfulness of the detention was a necessary pre-condition for the offence of permitting escape, and it is well established that the Courts will not presume the existence of facts which are central to an offence..’


  1. In the present case, there was no arrest. Since Mayswood was not under arrest, it follows that during the scuffle with Constable Detabene over the music box, he was not in lawful custody.
  2. There is no evidence to prove an element of the offence, that Mayswood was in lawful custody. I therefore find that the second accused, Daicos Grundler did not cause the release of Mayswood from lawful custody. I further find that he has no case to answer in Count 2.

COUNT 1- Causing Harm to Police Officer

  1. The elements of Section 77 (a)(b)(c)(ii) of the Act- Causing Harm to Police Officer, that the prosecution must prove beyond reasonable doubt are:
  2. Counsel for the accused submits that there is no case to answer because there ‘is no evidence of harm’ caused to Constable Detabane. This is also based on Republic v Jeremiah [2016] NRSC 42; where Crulci J said:

‘ i. If there is no evidence to prove an element of the offence alleged to have been committed, the defendant has no case to answer.


  1. Under Section 8 of the Act, ‘harm’ means physical harm or both. ‘Physical harm’ includes:
  2. The evidence summarised above show that Mayswood did hit Constable Detabene. The circumstances surrounding the ‘hit/ punch’ on Constable Detabene’s face needs to be examined. According to PW3, Constable Detabene, when he arrived at the scene, he and PW1, Sgt Brando went towards the group that was drinking. He said- ‘I’ll take the music box.’ He admitted that the music box did not belong to him. The first accused, Mayswood, got up, and told him not to take the music box. Mayswood remarked-‘You’re just using your uniform. The scuffle over the music box ensued. According to Constable Detabene, Sgt Brando was behind him and PW2 Const Shane Brechtefeld was ‘right beside me.’ In his police statement, Constable Detabene said- paragraph 3-

..’ I put the music speaker down on the ground and I then grab hold of him. I held onto his shirt...I try to hold him and Const Brando came and lock him from the back so while Const Brando hold from his back, I pulled his left arm and he threw a fist punch to my face..’


  1. It is to be noted here that when Constable Detabene –‘put the music speaker down on the ground and I then grab hold of him’, Mayswood had not committed any offence. As per Const Detabene’s statement- ‘Constable (Sgt) Brando came and hold him from the back.’ Constable Detabene then – ‘pulled his left arm and he threw a fist punch to my face.’ From this evidence, it is clear that when Constable Detabene and Sgt Brando struggled with Mayswood, no offence had been committed by the first accused. He was not under arrest neither was he in lawful custody. From the evidence, an inference can be drawn. Firstly, I refer to Republic v Jeremiah [2024] NRSC 11; Criminal Case 10 of 2021 (5 July 2024). At paragraph [17] I said:

17, ‘In my ruling on the ‘no case to answer submission’ I said:

‘16. The court notes that from the evidence, the ‘intention” of the accused to cause harm to the police officer’ is apparently absent. This is based on the evidence of the complainant himself.

17. I remind myself of the observations of CJ Fatiaki when he dealt with the Bail application in this matter. He delivered his ruling on 16th June 2021.

18. At paragraph 33, he said:

‘What’s more and relevantly in the circumstances of this case, where alcohol consumption is involved, Section 14(2) of the Crimes Act 2016 provides that: “Conduct can only be a physical element if it is voluntary” in the sense of being an ‘act’ that “is a product of the will of the person who engages in the act.” In other words, the act must be willed and intentional [ as defined in Section 17(1)] and not accidental or the unintended consequence of “flailing ones’ arms “to avoid being held or restrained or being stung by a bee or mosquito.”

19. From the evidence, it appears that the act or the conduct of the accused here is akin to “flailing one’s arm’ to avoid being held or restrained.


  1. I draw a similar inference here that in trying to ‘avoid being held or restrained,’ for not committing an offence, and not being under arrest or lawful custody, the flailing arm of Mayswood caused his fist to hit Constable Detabene. This negates the requisite intention on his part to cause harm to Constable Detabene.
  2. In the alternative, I consider- Murray v Ministry of Defence (Northern Ireland) [ 1988] UKHL 13; [1988] 2 All ER 521 Lord Griffiths, in discussing an illegal arrest said (at p. 526):

‘It has been well settled law,... that a person must be informed of the reason for his arrest at or within a reasonable time of the arrest. There can be no doubt that in ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he is entitled to know the reason. If the police fail to inform him, the arrest will be held to be unlawful, with the consequence that if the police are assaulted as the suspect resists arrest, he commits no offence, and if he is taken into custody, he will have an action for wrongful imprisonment.’


  1. In the present case, Timothy Mayswood was being illegally restrained. The consequent hitting of Constable Detabene’s does not amount to an offence.
  2. Further, I note the finding of CJ Fatiaki in the R v Agege case, where he said at paragraph [27] :

‘Be that as it may, the prosecution did not produce any medical evidence to establish the ‘harm’ allegedly caused by Constable Dunstall Ika which might be expected given his claim of being punched in the face with a steel ‘knuckle duster.’

  1. Similarly, although Constable Detabene testified that he was punched with a closed fist during the scuffle over the music box, there is no medical evidence of any injury or that he felt any ‘pain’ or suffered any ‘harm’ as defined under Section 8 of the Crimes Act 2016.
  2. I find that there is ‘no evidence to prove the element of harm ‘for Count 2.
  3. Before I conclude, I summarise the relevant law and some commentaries that may guide the police for future reference. In most cases, the provisions are self-explanatory.

Article 5 – Constitution

  1. No person shall be deprived of his personal liberty, except as authorised by law;
  2. A person who is arrested or detained shall be informed promptly of the reasons for the arrest or detention.
  3. The observations of Lord Griffiths in the Murray v Ministry of Defence Case mentioned in Paragraph [14] above is relevant here.

Criminal Procedure Act 1972

Section 10(4)

Mode of Making Arrest

Section 11

CRIMES ACT 2016

Section 270 Arrest without warrant- Police

Section 248 Public Nuisance

  1. In Republic v Agigo (2020) NRSC 17, Vaai J said (at [9]- [11]:

‘Section 270 (2) (e) does not authorise a police officer to arrest without warrant any person against whom a complaint is laid... immediately following the laying of a complaint. Reasonable steps should be taken to verify that the complaint is not spiteful... is reasonable and implicates the suspect. The section certainly cannot justify the police to arrest without a warrant a suspect to assist the police gather evidence to prosecute himself or herself. A suspect cannot be forced to break his silence.’

Article 5 (1) (c) of the Constitution dictates that it is incumbent upon the police to establish suspicion based on reasonable grounds that the suspect has committed or about to commit the offence. Reasonable grounds can only be brought about by making inquiries after the complaint is laid. “


  1. In the present case, the police officers did not make any initial inquiries. They were not even aware or had any suspicion based on reasonable grounds that an offence had been committed. They just attended to the scene and in the words of PW3- they set up an ‘ambush’ in case they flee. They set up an ambush not knowing what offence was allegedly committed by the group, gathered in a private home.
  2. On acting on instructions from their superiors, the House of Lords decision in O’Hara v Chief Constable of the R.U.C, [1996] UKHL 6; [1997] 1 All ER 129 is instructive. Lord Steyn said (at p. 134):

‘Certain general propositions about the powers of constables. (to arrest on suspicion) .. can now be summarised.

  1. In the present case, PW1, PW2 and PW3 had different versions of what their instructions were. They did not inquire nor verified whether the ‘complaint was spiteful.’ They did not have any reasonable suspicion of any alleged offences. Orders from Base appeared vague. The executive discretion to arrest or not vested in PW1, PW2 and PW3 as frontline officers attending to the report. As discussed in the O’Hara v Chief Constable of the R.U.C, in paragraph [52] above, such discretion vests in the police officers who ‘are engaged in the decision to arrest or not. In this case, PW1, PW2 and PW3 did not arrest Mayswood Timothy as in their words - he did not commit any offence. The consequential conduct of both Mayswood Timothy and Daicos Grundler do not amount to having a case to answer for the offences as charged.

CONCLUSION

  1. From the discussion above, I find that the first accused, Mayswood Timothy has no case to answer on Count 1.
  2. I also find that the second accused, Daicos Grundler has no case to answer on Count 2.
  3. The no case to answer submissions are upheld.
  4. Mayswood Timothy and Daicos Grundler, you are acquitted accordingly.

DATED this 07th Day November 2025


Kiniviliame T. Keteca

Judge


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