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Oscar v Republic [2026] NRSC 15; Criminal Case 3 of 2025 (3 March 2026)

IN THE SUPREME COURT OF NAURU
AT YAREN

[CRIMINAL JURISDICTION]

Criminal Case No. 03 of 2025

BETWEEN: Breday Oscar

Applicant

AND:

The Republic

Respondent

BEFORE: Keteca J

Date of Hearing: 17^th February 2026

Date of Ruling: 03^rd March 2026

Catchwords: Duplicity of Charges, Section 93(f) Criminal Procedure Act 1972 (the CPA).
Appearances:

Counsel for the Prosecution: M. Suifa’asia
Counsel for the Accused: M. Degei

RULING

BACKGROUND

1. The accused is charged with two counts of Indecent Acts in Relation to a Child under 16 years Contrary to Section 117(3)(a)(b)(c) of the Crimes Act 2016 (the Act). The offences are:
   

Count 1

Statement of Charge

Indecent Acts in relation to a child under 16 years Contrary to Section 117(3)(a)(b)(c) of the Crimes Act 2016.

Particulars of Charge

Breday Oscar between 30^th August 2024 and 24^th January 2025 at Ijuw District in Nauru, intentionally did an act toward EH, the act is indecent, namely showing his front private part to EH when EH was in the kitchen, and Breday Oscar is reckless about that fact; and EH is a child under 16 years old.

Count 2

Statement of Charge

Indecent Acts in relation to a child under 16 years Contrary to Section 117(3)(a)(b)(c) of the Crimes Act 2016.

Particulars of Charge

Breday Oscar between 30^th August 2024 and 24^th January 2025 at Ijuw District in Nauru, intentionally did an act toward EH, the act is indecent, namely showing his front private part to EH when EH was in her room, and Breday Oscar is reckless about that fact; and EH is a child under 16 years old.

2. There was a change of solicitors. On the date of the trial, Mr Degei raised a preliminary issue that the charges were bad for duplicity. In his submissions, Counsel refers to Section 93 of the CPA on the Rules for the framing of charges and Information and the following cases:
   1. Degia v R [2021] NRSC 48; Criminal Case 2 of 2021 (19^th November 2021);
   2. R v Scotty [2025] NRSC 9; Criminal Case 2 of 2021 (10^th April 2025)
   3. R v Ribauw [2025] NRSC 23; Criminal Case 04 of 2023 (24^th June 2025)
   4. Rixon v Thompson [2009]
      
3. Counsel argues that based on the Degia case, ‘the objection in cases such as the present one is that the accused does not know with any certainty the charge he has to meet.’ The time period between 30^th August 2024 and 24^th January 2025- ‘the accused cannot recall his whereabouts in terms of the allegation adduced in the Information.’ Counsel adds that ‘in the kitchen for Count 1’ and ‘in her room for Count 2’ do not specify whether the places are in the same or different houses. In an attempt to distinguish the Scotty case where I held-

“It is apparent therefrom that though there are 4 Counts of ‘indecent acts’ the alleged physical elements are different and so are the places where the alleged offence took place. ‘in the present case,’ the physical elements and alleged place where it took place are the same’ and so are the time periods.’

4. Counsel submits that as the Information stands, the 2 counts are ‘continuing offences or amounts to one activity.

RESPONSE BY THE PROSECUTION

5. Counsel submits that the issue is – ‘Whether the charges against the accused are bad for duplicity? The general rule on framing of charges is provided for under Section 93(f) of the CPA which states:

‘(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 to 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.'

6. Referring to Degia v Republic [2021] NRSC 48, which considered S v The Queen [1989] HCA 66; (1989) 168 CLR 266, Counsel quotes Dawson J-

‘As I have said, the three counts in the indictment were framed in a permissible way. Each charged only one offence and gave rise to no duplicity. Had evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment...’

7. Counsel refers to ‘Blackstone Criminal Practice 2023: The Rule Against Duplicity” –

‘The ordinary rule is that each count in an indictment must allege only one offence. If a count alleges more than one offence, it is said to be bad for duplicity and should be quashed before arraignment.’

8. Counsel submits hat this case is similar to the case of R v Joshua Scotty [2025] NRSC 9- ‘where the two incidents were alleged to have occurred on unknown dates within the represented dates of 30^th August 2024 and 24^th January 2025. The converse is that the two separate incidents occurred in two separate locations.’
   
9. Alternatively, Counsel submits that ‘the prosecution can revise the particulars to insert the terms ‘unknown date between 30^th August 2024 and 24^th January 2025’ in both counts and insert in Count 1- ‘in the kitchen of EH’s home’ and insert ‘in her room at her home’ in Count 2.’
   

CONSIDERATION

10. A tabulation of the Information is informative.
    

11. In R v Scotty [2025] NRSC 9; Criminal Case 2 of 2021 (10th April 2025), I considered S v The Queen [1989] HCA 66; (1989) 168 CLR 266. At paragraph [11] Dawson J said:

The Australian Position

In S the applicant for leave to appeal was charged with three counts of incest. The first count was said to have occurred between 1 January 1980 and 31 December 1980; the second, between 1 January 1981 and 31 December 1981; and the third, between 8 November 1981 and 8 November 1982. Further particulars of the charges were sought but refused. In her evidence the complainant disclosed numerous acts of intercourse. She said that the first occurred in about 1979 or 1980 when she was fourteen years of age. She was born on 8 November 1965, so that act may or may not have occurred during the first period particularized. She said that other acts of intercourse occurred over the next two years until she left home at the age of seventeen years. The only acts of which she was able to give specific details were the first incident to which we have already referred and another incident during which the accused wore some of his wife’s clothing. There was no way of attributing this incident to any one of the three periods specified in the indictment.

At p 274-61 Dawson J said: -

“As I have said, the three counts in the indictment were framed in a permissible way. Each charged only one offence and gave rise to no duplicity. Had the evidence revealed only one offence in each of the years in question, there could have been no complaint about the form of the indictment. But the evidence disclosed a number of offences during each of those years, any one of which fell within the description of the relevant count. Because of this there was what has been called a ‘latent ambiguity’ in each of the counts .... That ambiguity required correction if the applicant was to have a fair trial.

Dawson J added:

‘The material before us does not reveal whether the ambiguity was apparent by reference to the depositions at the time that the applicant made application for particulars. If it was, it may have been appropriate for the trial judge to have ordered that particulars be given identifying the offences charged, if not by reference to time, by reference to other distinguishing features. If at that stage such a course was inappropriate and it was necessary for the prosecution to call its evidence for the precise nature of the defect in the proceedings to emerge, the prosecution ought to have been required as soon as the defect became apparent to elect by indicating which of the offences revealed by the evidence were the offences charged. In some cases (although not, it would seem, the present one) the ambiguity may be removed by an amendment of the indictment splitting a count into several counts or by adding further counts so as to distinguish the separate occasions alleged. Such an amendment may only be allowed if it does not cause injustice or prejudice to the accused and that generally means that it cannot be made during the course of a trial.’

There was, I think, obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged. There was the additional embarrassment that the years in the second and third counts overlapped so that if an occasion fell within the overlapping period it was not possible to determine whether it was an offence charged by count two or by count three.

The occasions upon which the offences alleged took place were unidentified and the applicant was, in effect, reduced to a general denial in pleading his defence. He was precluded from raising more specific and, therefore, more effective defences, such as the defence of alibi. Because the occasions on which he was alleged to have committed the offences charged were unspecified, he was unable to know how he might have answered them had they been specified. It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.

His Honor added:

Moreover, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit. ...”

12. Noting the remarks of Dawson J above, I distinguish that case from the present one. Firstly, each count relates to only one offence. The 2 Counts in the present case do not refer to ‘indeterminate number of occasions ‘that are ‘unspecified.’ The present case is not one where ‘the occasions on which he was alleged to have committed the offences charged were unspecified.’ In contrast, although the time frame of between 30^th August 2024 and 24^th January 2025 and the ‘physical element’ for each count are the same- ‘showing his front private part,’ the ‘other distinguishing feature’ is that the offences allegedly occurred at different locations. The occasions when the alleged offences took place are specified. As I said in the R v Scotty case:

‘The particulars of the offences go further. They clearly distinguish where the accused allegedly committed the offences- at their veranda, the accused’s bedroom, and the toilet of their home. These particulars sufficiently identify the number and different occasions where the alleged offences took place.’

13. In this case, the alleged offence took place in EH’s bedroom and their kitchen. These different locations (kitchen and bedroom) refer to the different occasions when the alleged offences were committed. It was suggested at the hearing of the application that the term ‘private part’ in the ‘particulars of the charge’ may not be specific enough. Section 8 of the Act defines ‘private parts’ as:
    1. A person’s genitals, pubic area, buttocks; or
    2. A female’s breasts.

As in the R Scotty case, I make a similar finding here. I find that the Information filed against the accused on 04^th April 25 ‘complies with Section 93(f) of the Criminal Procedure Act 1972 in that- the descriptions of the offences are sufficient in particularising the place, time, and physical act of the accused. These are described in ordinary language. In this regard I find that the counts as described in the information indicate with reasonable clarity for the accused to know and understand what are being alleged against him and the different occasions when these offences were allegedly committed by him.

CONCLUSION

14. The application that the charges against the accused are bad for duplicity is dismissed.
    
15. This matter is listed for hearing from 23^rd November, 2026 to 27^th November, 2026
    

DATED this 03^rd of March 2026.

Kiniviliame T. Keteca

Judge