Page 25 - IB July 2018

Politics

the Judges of the courts in Nauru ers) on Nauru who are willing,
are not rights, or worse privileg- sufficiently qualified and avail-
es, that we each have. They are able to give legal representation
rights that every Nauruan has, to the defendants before and at
and the oath I took before the their trial commencing in about 4
Acting President, the Honorable weeks, such that that trial is a fair
David Adeang MP, on 13 March one according to the Constitution
2018, was an oath I swore to all of Nauru.
the people of Nauru.” “(9) The lack of any indication
In his judgement, Supreme from anyone that the Office of
Court of Nauru Judge Muecke the Public Legal Defender has
said there was no inkling that received no instruction or direc-
parliament was going to intro- tion from anyone regarding that
duce the new law. He had com- Office acting for the defendants,
pleted his hearing on 29 May, Judge Muecke has ordered that the five Australian lawyers (above) should defend and that no such instruction or
the Nauru 19 and that the Nauru Government shoould foot part of their bills.
flew back to Australia the follow- direction will be given to anyone
ing day and had “commenced the from that Office.
writing of my decision” when “at about “My finding, which I now make, and of
2.30pm Nauruan time on Wednesday, 6 which I am satisfied beyond any doubt,
June 2018, I was sent the Criminal Pro- I can by law order that the defendants will only receive a fair
cedure (Amendment) Act 2018 by the trial, guaranteed to them by the Constitu-
Registrar of the Supreme Court.” the Republic of tion, over the next several months, if their
The amending act was certified the same current Australian legal team is assigned
day he received it, the Judge added. to them by me, under Article 10 (3) of the
In ordering the Nauru Government to Nauru to pay the Constitution.
foot the bill of the 19 defendants, the Judge “I conclude that I can, by law, order
said he was satisfied that all of them did costs of legal rep- the Republic of Nauru to pay the costs of
not have the financial means to pay for legal representation that I assign to the
their own lawyers, nor does Nauru has resentation defendants in this case.
enough qualified lawyers to offer legal “I reject the submission of the DPP that
representation. I can only order legal representation to the
“It is not necessary, or appropriate, to “(1) My finding that the defendants defendants by assigning legal representa-
refer here in detail to these Exhibits. It were denied legal representation by the tives who are prepared to act pro bono. I
suffices for me to say that they indicate Public Legal Defender on Nauru in the consider that that is not only wrong as a
that most of the defendants are in a poor, aftermath of the events at the Parliament matter of law, and in principle, but it is
if not dire, financial state. on 16 June 2015. unworkable in practice. How would a court
“The exhibits disclose to me that nei- “(2) I find that as a result of (1) the find such legal representation?
ther individually nor together do the defendants were forced to seek legal “The Public Legal Defender does not
defendants have sufficient means to pay representation off Nauru. They, I find work pro bono, nor would, I imagine, any
the costs already incurred or that will be reasonably, chose to seek it in Australia. Pleader on Nauru. The Court would have
incurred should either their Australian le- Mr Graham Hearn was the second lawyer to look elsewhere and the same problem
gal team or any Nauruan legal team, if one they sought after the first was denied a that has arised in this case may likely
could be assembled which I am satisfied visa to enter Nauru. arise again.”
could not happen, be assigned to them. “(3) Mr Graham Hearn has been the This Supreme Court ruling reconfirms
“I so find.” Solicitor on the record in this Court as the four New South Wales lawyers of
The Judge also ruled that he accepted the acting for the defendants since August Mark Higgins, Stephen Lawrence, Felic-
defence lawyers’ submission that the office 2016. This includes the four defendants ity Graham and Neal Funnel and solicitor
of the Public Legal Defender in Nauru was who pleaded guilty. Christian Hearn represent the 19. They
instructed not to offer legal representation “(4) The four Australian counsel have have been acting for the Nauru 19 for
to any or all of the 19. The former Public also acted for the defendants since August almost 2 years on a pro-bono basis.
Legal Defender is now the Director of Pub- 2016. In welcoming the court ruling, Mathew
lic Prosecutions in Nauru, a Fijian, John “(5) There has developed a strong Batsiua, a former Minister for Justice of
Rabuku. Another Fijian has replaced him mutual confidence between the defendants Nauru and one of the Nauru 19 said “It
in the office of the Public Legal Defender, and their five Australian lawyers in the last is clear Mr. Adeang (Justice Minister) and
Sevuloni Valenitabua. Many other Fijians nearly 2 years. the rest of the Waqa government do not
hold senior positions in Nauru’s judiciary “(6) Numerous hearings have occurred wish to publicly fund our defence.
including Chief Justice Filimoni Jitoko, here with their Australian legal team rep- “They have tried to frustrate our ap-
Solicitor General Jay Udit and Secretary resenting the defendants. plication for funding to ensure a fair trial
of Justice Graham Leung. “(7) The defendants and their Aus- at every turn. We feel vindicated that the
In his 41-page long ruling, Judge tralian legal team have expended very Supreme Court has now declared void their
Moecke took time to list the nine reasons significant sums of money up to this time, last attempt to legislate away our right to
why a fair trial would occur if the 19 Nau- and there are no monies left. a fair trial and ordered the Republic
ruan defendants were to be represented by “(8) My not being satisfied that there to pay.”
their four lawyers in Australia. are sufficient lawyers (including Plead- r editor@islandsbusiness.com

Islands Business, July 2018 25