RECENT DEVELOPMENTS

Trial of the ‘ 19’ Michael Swanson reports on R v Batsiua [2018] NRSC 46

Introduction JJ) as well as the jurisdiction to prevent the order as it was not a party to the pro- abuse of executive power, concluding that ceedings. A series of criminal charges were brought the power of the court to order a stay may The Secretary further wrote that there by the Republic of Nauru against Mr Bat- not always be discretionary; in some circum- was no allocation of money pursuant to the siua and others (known as the ‘Nauru 19’) stances it is mandatory. Treasury Fund Protection Act 2004. The only for conduct relating to a protest outside of Muecke J considered at [49] all aspects possible avenue was the amount of $3,000 the Nauruan Parliament on 16 June 2015. of the history of the dispute, including pro- which was contemplated in an amendment Mr Batsiua and two other members of the ceedings which had been before a variety of to the Criminal Procedure Act 1972, which Nauru 19 were former members of the Na- courts and actions of the parties, were rel- Muecke J had previously found unconstitu- uruan Parliament. The charges included Un- evant to a consideration of the application. tional. lawful Assembly, Riot and Disturbing the A substantial portion of the judgment, some Both the secretary and the director of Legislature which are all crimes under the 315 out of 500 paragraphs, recounts and public prosecutions attempted to draw a Criminal Code, 1899 of Nauru. Most of the considers the history of the dispute. distinction between the Republic of Nauru, defendants pleaded not guilty and argued the Executive or Government of Nauru, that they had engaged in peaceful protest, Order for payment of the DPP and the legislature of Nauru as which is protected by the of justification for why the order would not be Nauru. complied with, summarised at [433]. On 13 September 2018, the Supreme Ultimately Muecke J found at [450] that Court of Nauru, constituted by Justice the submissions by the Republic of Nauru as Geoff Muecke, granted a permanent stay to who, or what, does or does not constitute of the proceedings against the defendants, the Republic of Nauru were at best disingen- on the basis that the court was satisfied that uous. His Honour found that at worst, they the defendants could not receive a fair trial. were a conscious and deliberate assertion Justice Muecke is a retired chief judge of the that no lawyer could honestly believe. His District Court of South appointed Honour’s order of 21 June 2018 bound the to the of Nauru in March Republic of Nauru, and his Honour found 2018. that the Executive, as the branch responsible The defendants were unable to obtain local for the republic’s finances, must ensure that legal representations in the dispute. After a the republic comply with the order. series of attempts to seek representation from His Honour found at [453] that the min- various Australian legal practitioners, Mr ister for justice understood and knew that it Christian Hearn, solicitor, and Ms Felicity was the Government of Nauru that must pay Graham, Mr Mark Higgins, Mr Stephen the money to comply with the orders of 21 Lawrence and Mr Neal Funnell of the NSW June 2018. bar were retained as legal representatives for The orders of 21 June 2018 had not, at the the defendants. time of that judgment, been complied with. The legal framework Former members of parliament, Mathew Batsiua and Findings of Fact Squire Jeremiah outside court after obtaining a The question before the court was not one permanent stay of their criminal proceedings. His Honour made a number of factual find- which had previously been considered by a ings which were relevant to the conclusion court in the Nauruan legal system. defendants’ legal fees that the defendants could not receive a fair Muecke J observed (at [457]) that in con- trial, including: In a judgment delivered on 21 June sidering whether the court should exercise • that the Nauruan government had acted its discretion to order a permanent stay, the 2018 Muecke J ordered that the Republic of Nauru pay into the Supreme Court an in a manner contrary to the Rule of court is required to balance a number of fac- in Nauru (at [370], [375], [378] and [385]); tors, unique to each proceedings, and have amount of $224,000 to pay for the costs of regards to the interests of the defendants, the defendants’ legal representation. • that shortly after the defendants had been the alleged victims; and the community The Republic of Nauru did not pay those charged, the then Public Defender refused generally. fees as ordered and raised a number of argu- to represent them. The minister for justice At [459] – [461] his Honour considered ments as to why it could not or would not had further made it clear to that those Jago v District Court (NSW) (1989) 168 CLR comply with that order. At one point the on Nauru who could have provided legal 23 (per Mason CJ) and Carroll v R (2002) secretary of justice, in a letter, asserted that representation to the defendants were not 213 CLR 635 (per Gaudron and Gummow the Government of Nauru was not bound by to do so (at [367] to [370]);

The Journal of the NSW Bar Association [2018] (Summer) Bar News 83 RECENT DEVELOPMENTS

Legal team for the Nauru 19 (L-R): Felicity Graham, Christian Hearn, Stephen Lawrence, Bret Members of the Nauru 19 anti-government protestors awaiting the Walker SC, Mark Higgins and Neal Funnell outside the , following the decision of the Supreme Court. successful appeal by three members of the Nauru 19.

• that the Nauruan Government had [397] as ‘a quite different approach [of the Nauruan in the country’s Constitution, imposed a ‘blacklist’ on the defendants minister for justice] to getting Australians being the Supreme . Further, which prevented them from obtaining into Nauru when they were coming to act I conclude that instead of fair trial for these employment or receiving income from for the republic, than he had to getting defendants within a reasonable time, the Ex- other sources, including rent from proper- Australians into Nauru who the defend- ecutive Government of Nauru wishes as only ties owned (at [371] to [375]); ants wished to act for them’; that they, and each of them, be convicted and imprisoned for a long time, and that the • that prior to September 2016, when Mr • that the two-year delay in the case coming Government of Nauru is willing to expend Hearn first arrived in Nauru, almost all to trial was caused by the republic and whatever resources, including financial re- of the defendants had yet to receive any its ‘prosecutorial, administrative and sources, as are required to achieve that aim. legal advice concerning the nature of the executive representatives in the courts of I conclude that the Executive Government allegations that had been put against them Nauru’; noting in particular, at [412], that of Nauru does not wish or intend to provide and the evidence that had been collected for the majority of this time the defend- any resources, including financial resources, (at [377); ants were unrepresented; to these defendants so as to ensure that they • that the minister for justice was conscious- • that further delay was caused by accusa- do receive a fair trial according to law within ly and deliberately seeking to influence the tions of contempt of court by the republic, a reasonable time according to the country’s Nauruan Courts. This included, as dis- on several occasions, against the legal Constitution cussed earlier in his Honour’s judgment, representatives of the defendants. These reference to a Magistrate’s employment accusations included threats of proceed- Orders contract being considered in the near ings being brought against those legal Ultimately, at [475], Muecke J held that in future (at [384]);. practitioners, and seeking personal costs the circumstances of this case, where the orders against them (at [416]); • that the latest brief of evidence was not court was satisfied that a fair trial was not completed and disclosed to the defend- • On 5 June 2018 the minister for justice, possible, the power to order a permanent ants’ legal team until September 2017 (at with knowledge of these proceedings, stay was not discretionary, but mandatory. [388]); introduced legislation for the express This was, as his Honour described at purpose of frustrating a motion which [476], ‘a very rare case where Executive In- • that the Nauruan Government, through had been argued before the courts and for ference (sic)… has been such that I consider its various bodies, fought in the Nauruan which judgment was reserved (at [427]). that the ‘continuation of the prosecution is courts against the admission of Australian inconsistent with the recognised purposes legal practitioners engaged to represent Muecke J concluded at [462] to [463] of the administration of criminal justice the defendants. The minister for justice that, in consideration of the above and other and so continues an abuse of the process of further resisted, and refused to process, findings of fact, that: the court’… the Executive Government of the visas of some of those same legal My conclusion is that the Executive Nauru has displayed persecutory conduct to- practitioners (at [379]). This was in com- Government of Nauru does not want these wards these defendants which is all the more parison to what Muecke J described at defendants to receive a fair trial within a reasonable time as guaranteed to every serious in the unique context of Nauru.’

84 [2018] (Summer) Bar News