Page 19 - IB September 2018 Edition

Judiciary

delay to date and continuing, has been Nauru Government’s Black List
very extensive and egregious. I find that
each accused has been subject to, and sub-
jected to “the vexations and vicissitudes Such a list according to the Judge is “a further call from a person associated with the mental
of the pending criminal proceedings” as shameful affront to the Rule of law in nauru.” health service. He was told “about a directive
“There is uncontroverted evidence before
submitted by counsel for the defendants. me which satisfies me that the “blacklist” has she had received by the nauru Cabinet (gov-
“I am satisfied and find that each ac- ernment) to vacate my premises and abandon
cused has endured “this stigmatisation continued since June 2015, it is continuing, the lease immediately”. She informed him she
brought about by the lengthy and notori- and it applies to more than refusing or denying wanted to let him know “that the Cabinet from
ous proceedings against them”; each has employment to those on it. Such evidence is the government of nauru instructs us to leave
found in the affidavit of Mathew Batsiua dated
suffered disruption to their families, social 14 June 2018. That affidavit indicates, and i find the house as soon as possible. They even asked
life, education and work; each has incurred us to move “today” but she had negotiated a
significant financial costs to engage even what follows to be the facts, that in October 2017 move on the coming weekend. She told him
pro bono legal representatives; and each Mr Batsiua entered into a leasing agreement with that she was sorry but “We have no choice. if
has laboured under the uncertainty as to an organisation to provide primary mental health not, we have to go out”. This last comment was
services to the people and residents of nauru.
the outcome of and the sanction for this The lease concerned his house on nauru. in understood by Mr Batsiua “to mean that if (the
matter. I have found that the defendants service) did not stop leasing my property, then
did not receive personal advice from legal June 2018 (after i had reserved my decision (it) would be forced by the government to leave
representatives until 15 months after the of 21 June 2018 in May 2018, but before i nauru altogether.”
alleged “riot” at Parliament on 16 June delivered it), Mr Batsiua received a telephone
2015.
“I have found that each was on the
Government policy “blacklist”, and each Law in Nauru.” insinuate that, he said that there was no
remained on it. I find that each would “I find that it has been understood by evidence and there were no facts. How-
have heard from time to time what the the Public Legal Defender and those in ever, he maintained the insinuation he had
Minister for Justice publicly stated about his office, by all legal practitioners on expressed as part of his submissions to me
each of them, their conduct, their char- Nauru, and by all Pleaders on Nauru that regarding matters that may be relevant to
acters and what the Government wished the Minister for Justice expects that no a permanent stay.
and expected to be visited on them by legal assistance or representation is to be “At the time the submission was made,
the courts. There is evidence before me provided by them to any of the defendants it struck me as a rather unusual one for
as at February this year indicating that before me. a DPP to make. My view is that such a
the defendants and their Australian le- “Further, I find that it is understood submission in such circumstances is inap-
gal representatives had, by that month, by those persons that the Minister for propriate for, and unbecoming of, a DPP to
spent at least $58,000 on legal costs and Justice of Nauru considers that all these make in any jurisdiction. I do not consider
expenses in respect of these proceedings. defendants are guilty of very serious it to be an appropriate submission for a
There have been further significant legal crimes against the Parliament of Nauru, Director of Public Prosecutions, who is the
and other expenses since February 2018. they should be shown no mercy, and Officer responsible for the representation
They continued until I reserved this judg- they should be locked up for consider- of a State in criminal proceedings against
ment on 2 August 2018. able periods. It is understood that the one its citizens before the courts, to make,
“I find it hard to imagine what each Minister for Justice believes that as such, whilst acknowledging that there were no
of these defendants must have suffered, the defendants are criminals who deserve facts or evidence to support it.”
living on a small island, without work, no assistance or representation by anyone “I do not go through the litany of appli-
without income, with worrying about their on the Island of Nauru. cations, affidavits which were alleged to be
fate and their families for over three years, “In my judgment, the findings and filed without leave and without a Notice of
when trying to assist their Australian legal conclusions to which I have just referred, Motion to support them, or to submissions
team to come to Nauru to act for them and constitute a shameful affront by the Minis- by senior legal officers of Nauru, such as
to assist them. And these are citizens of ter for Justice to the Rule of Law in Nauru, the Solicitor-General, to the effect that
Nauru who have not been found guilty or which he professes to operate for and give subpoenas addressed to the Minister for
convicted of any crime. I find that the past, protection to the citizens of the country, Justice and the Secretary for Justice and for
existing and possible future prejudice to under its Constitution.” documents that were sought to be issued
each of the defendants.” DPP and Solicitor General and returned on a Notice of Motion that
Justice Minister Adeang Supreme Court judge Muecke was the judiciary in Nauru were not sufficiently
Supreme Court Judge Muecke saw Min- also very critical of the Director of Public independent of the Executive Government
ister Adeang’s hands in the poor handling Prosecutions John Rabuku and that of the such as to give the appearance of impar-
of the case on the part of the government island’s Solicitor General Jai Udit. tiality, should not be permitted because
of Nauru. The judge accused the minister “In his submissions dealing with fac- nothing that those witnesses could say
of “consciously and deliberately seeking to tors relevant to a permanent stay, the DPP or those documents could disclose could
influence the Nauruan Courts in their deal- referred to the fact that in some cases ac- be relevant in any way to the charges laid
ing with the “rioters”, each of whom were cused persons do not want to go to trial. against the defendants. That seems to me
expected by the Executive Government to He then submitted that he could “insinuate to be one example of a submission that
be brought to justice by the Courts and be that these defendants don’t want to go to should not have been made to the courts
sentenced severely,” and that his conduct judgment day” on the charges they are in Nauru by one of the country’s senior
in parliament “on 3 November 2016 was facing. When I pressed him to identify law officers.”
a further shameful affront to the Rule of on what facts or evidence he relied to r editor@islandsbusiness.com

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