Victory for Nauru 19

Nauru ’s justice minister David Adeang’s conduct in a case involving 17 men and two women charged in connection with a protest outside the island parliament more than three years ago was a shameful affront to the rule of law in Nauru, the island Supreme Court said as it ordered a permanent stay over the case.

Retired High Court judge of South Australia Justice Geoff Muecke who was flown in to preside over the Nauru Supreme Court last month also found that the “executive government of Nauru” did not want the “defendants to receive a fair trial within a reasonable time as guaranteed to every Nauruan in the country’s constitution, being the supreme law of Nauru.”

“I conclude that instead of fair trial for these defendants within a reasonable time, the Executive Government of Nauru wishes as only that they, and each of them, be convicted and imprisoned for a long time, and that the Government of Nauru is willing to expend whatever resources, including financial resources, as are required to achieve that aim,” said Judge Muecke.

“I conclude that the Executive Government of Nauru does not wish or intend to provide any resources, including financial resources, to these defendants so as to ensure that they do receive a fair trial according to law within a reasonable time according to the country’s Constitution.

“Even in mid to late 2017, the Minister for Justice rejected a suggestion that the Republic consider a (AUD)$10,000 ex gratia payment towards the legal costs of the defendants.”

No Fair Trial Guaranteed
Before Judge Muecke was an application for a permanent stay order by 19 out of the 20 people and it follows the refusal by the Nauruan Government to abide by a 21 June 2018 ruling by the same judge that the government must meet the legal costs of the defendants’ lawyers, of about AUD$2240000 (USD163,000).

Failure to pay the Judge said would mean that the 19 would be unrepresented and a fair trial therefore could not be guaranteed.

Two of the 19 defendants were former members of the Nauru parliament and the charges stemmed from a protest they staged with their supporters outside parliament in June of 2015.

In his comprehensive judgment of 107 pages, Justice Muecke was condemnatory of the government of Nauru’s handling of the case and its treatment of the defendants. He believes these actions were “inconsistent with the recognised purposes of the administration of criminal justice and an abuse of the process of the court” and bordering on persecution.

“I consider that in the circumstances the power to make a permanent stay order in this case is not a discretionary power of mine. It is mandatory.

“I consider that this case is a very rare case where Executive Inference, virtually from the day after the events outside Parliament on 16 June 2015, has been such that I consider that “the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so continues an abuse of the process of the court.”

Black List
“I consider that in denying the defendants legal representation and resisting their obtaining legal assistance, in imposing a “blacklist”, in forbidding any plea bargaining, and in publicly denouncing and vilifying the defendants and those seeking to assist them, the Executive Government of Nauru has displayed persecutory conduct towards these defendants which is all the more serious in the unique context of Nauru.

“I consider and I find that the prejudice to each and every accused, caused by the delay to date and continuing, has been very extensive and egregious. I find that each accused has been subject to, and subjected to “the vexations and vicissitudes of the pending criminal proceedings” as submitted by counsel for the defendants.

“I am satisfied and find that each accused has endured “this stigmatisation brought about by the lengthy and notorious proceedings against them”; each has suffered disruption to their families, social life, education and work; each has incurred significant financial costs to engage even pro bono legal representatives; and each has laboured under the uncertainty as to the outcome of and the sanction for this matter. I have found that the defendants did not receive personal advice from legal representatives until 15 months after the alleged “riot” at Parliament on 16 June 2015.

“I have found that each was on the Government policy “blacklist”, and each remained on it. I find that each would have heard from time to time what the Minister for Justice publicly stated about each of them, their conduct, their characters and what the Government wished and expected to be visited on them by the courts. There is evidence before me as at February this year indicating that the defendants and their Australian legal representatives had, by that month, spent at least $58,000 on legal costs and expenses in respect of these proceedings. There have been further significant legal and other expenses since February 2018. They continued until I reserved this judgment  on 2 August 2018.

“I find it hard to imagine what each of these defendants must have suffered, living on a small island, without work, without income, with worrying about their fate and their families for over three years, when trying to assist their Australian legal team to come to Nauru to act for them and to assist them. And these are citizens of Nauru who have not been found guilty or convicted of any crime. I find that the past, existing and possible future prejudice to each of the defendants.”

Justice Minister Adeang
Supreme Court Judge Muecke saw Minister Adeang’s hands in the poor handling of the case on the part of the government of Nauru. The judge accused the minister of “consciously and deliberately seeking to influence the Nauruan Courts in their dealing with the “rioters”, each of whom were expected by the Executive Government to be brought to justice by the Courts and be sentenced severely,” and that his conduct in parliament “on 3 November 2016 was a further shameful affront to the Rule of Law in Nauru.”

“I find that it has been understood by the Public Legal Defender and those in his office, by all legal practitioners on Nauru, and by all Pleaders on Nauru that the Minister for Justice expects that no legal assistance or representation is to be provided by them to any of the defendants before me.

“Further, I find that it is understood by those persons that the Minister for Justice of Nauru considers that all these defendants are guilty of very serious crimes against the Parliament of Nauru, they should be shown no mercy, and they should be locked up for considerable periods. It is understood that the Minister for Justice believes that as such, the defendants are criminals who deserve no assistance or representation by anyone on the Island of Nauru.

“In my judgment, the findings and conclusions to which I have just referred, constitute a shameful affront by the Minister for Justice to the Rule of Law in Nauru, which he professes to operate for and give protection to the citizens of the country, under its Constitution.”

DPP and Solicitor General
Supreme Court judge Muecke was also very critical of the Director of Public Prosecutions John Rabuku and that of the island’s Solicitor General Jai Udit.

“In his submissions dealing with factors relevant to a permanent stay, the DPP referred to the fact that in some cases accused persons do not want to go to trial. He then submitted that he could “insinuate that these defendants don’t want to go to judgment day” on the charges they are facing. When I pressed him to identify on what facts or evidence he relied to insinuate that, he said that there was no evidence and there were no facts. However, he maintained the insinuation he had expressed as part of his submissions to me regarding matters that may be relevant to a permanent stay.

“At the time the submission was made, it struck me as a rather unusual one for a DPP to make. My view is that such a submission in such circumstances is inappropriate for, and unbecoming of, a DPP to make in any jurisdiction. I do not consider it to be an appropriate submission for a Director of Public Prosecutions, who is the Officer responsible for the representation of a State in criminal proceedings against one its citizens before the courts, to make, whilst acknowledging that there were no facts or evidence to support it.”

“I do not go through the litany of applications, affidavits which were alleged to be filed without leave and without a Notice of Motion to support them, or to submissions by senior legal officers of Nauru, such as the Solicitor-General, to the effect that subpoenas addressed to the Minister for Justice and the Secretary for Justice and for documents that were sought to be issued and returned on a Notice of Motion that the judiciary in Nauru were not sufficiently independent of the Executive Government such as to give the appearance of impartiality, should not be permitted because nothing that those witnesses could say or those documents could disclose could be relevant in any way to the charges laid against the defendants. That seems to me to be one example of a submission that should not have been made to the courts in Nauru by one of the country’s senior law officers.”

Nauru Government’s Black List
Such a list according to the Judge is “a further shameful affront to the Rule of Law in Nauru.”

“There is uncontroverted evidence before me which satisfies me that the “blacklist” has continued since June 2015, it is continuing, and it applies to more than refusing or denying employment to those on it. Such evidence is found in the affidavit of Mathew Batsiua dated 14 June 2018. That affidavit indicates, and I find what follows to be the facts, that in October 2017 Mr Batsiua entered into a leasing agreement with an organisation to provide primary mental health services to the people and residents of Nauru. The lease concerned his house on Nauru. In June 2018 (after I had reserved my decision of 21 June 2018 in May 2018, but before I delivered it), Mr Batsiua received a telephone call from a person associated with the mental health service. He was told “about a directive she had received by the Nauru Cabinet (Government) to vacate my premises and abandon the lease immediately”. She informed him she wanted to let him know “that the Cabinet from the Government of Nauru instructs us to leave the house as soon as possible. They even asked us to move “today” but she had negotiated a move on the coming weekend. She told him that she was sorry but “We have no choice. If not, we have to go out”. This last comment was understood by Mr Batsiua “to mean that if (the service) did not stop leasing my property, then (it) would be forced by the Government to leave Nauru altogether.”