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IN the SUPREME COURT of NAURU ATYAREN CRIMINAL JURISDICTION Criminal Case No.5 Of20 18 in the Matter 0/ an Appeal from the District Court at Yaren 0/ Criminal Case No

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IN the SUPREME COURT of NAURU ATYAREN CRIMINAL JURISDICTION Criminal Case No.5 Of20 18 in the Matter 0/ an Appeal from the District Court at Yaren 0/ Criminal Case No IN THE SUPREME COURT OF NAURU ATYAREN CRIMINAL JURISDICTION Criminal Case No.5 of20 18 In the matter 0/ an appeal from the District Court at Yaren 0/ Criminal Case No. 16 0/2017 BETWEEN The Republic Appellant And : Jaden Adun Respondent Before: Khan, J Date of Hearing: 12 April 2019 Date of Judgement: 25 April 2019 Case may be cited as: Republic v Adun CATCHWORDS: Criminal appeal- Where the District Court made an adverse finding of credibility against the complainant and acquitted the respondent- Whether this court can disturb the credibility findings on appeal- Whether appeal heard by way re-hearing. Held: Allowing the appeal. Appeal heard by way of re-hearing. This court can disturb the credibility findings of the District Court and set aside the findings if the finding is inconsistent with the facts incontrovertibl y established. APPEARANCES: Counsel for the Appellant: J Rabuku (DPP) Counsel for the Respondent: S Valenitabua 1 JUDGEMENT INTRODUCTION I. The respondent was charged with the following offences: Count I Statement of Offence intentionally causing hann contrary to s.74(a), (b) and (c)(2) of the Crimes Act 2016. Particulars of Offence Jaden Adun on 16 March 2017 at Anabar District in Nauru intentionally engaged in conduct which caused hann to Saraj Hamedan Mojtaba without his consent and Jaden Adun intended to cause hann to Saraj Hamadan Mojtaba. Count 2 Statement of Offence Damaging property contrary to s.201(a) and (b) ofthe Crimes Act 2016. Particulars of Offence Jaden Adun on 16 March 2017 at Anabar District in Nauru caused damage to a Samsung Galaxy S6 Edge Mobile Phone belonging to Saraj Hamadan Mojtada and was reckless about causing damage to the said Samsung Galaxy S6 Edge Mobile Phone. 2. The respondent pleaded not guilty to the above charges and the matter proceeded to hearing on 28 February 2018. On 20 March 2018 the District Court presided by Magistrate Lomaloma acquitted the respondent on both counts. 3. The appellant filed this appeal against the acquittal on 22 March 2018. The grounds of appeal are as follows: 1) That the learned Magistrate erred in law and in fact in his assessment of the medical report and in proceeding to speculate the injuries he would have expected on the victim when there was no evidence of force required for count 1 and no evidence of force was before the Court; 2) That the learned Magistrate erred in law and in fact in finding that the complainant was a truthful witness based on his assessment of the medical report; 3) That the learned Magistrate erred in law and in fact when he found that the victim became a trespasser when the victim at all material times was at the respondent's compound for a legitimate purpose and was not a danger to the respondent's life or his property; 2 4) That the learned Magistrate erred in law and in fact when he found that thi s was a case of ejectment of a trespasser where extra judicial remedy in a private home and would involve the law of torts, when the charges against the respondent were under the Crimes Act 2016 and the criminal jurisdiction of the Court; 5) That the learned Magistrate erred in law and in fact in his application of s.52 of the Crimes Act 2016; 6) That at any event the use of tortious remedy of ejectment and expUlsion was wrong in law and the principle as such tortious remedies have its procedural and enforcement rules in the law of torts under the civil jurisdiction of a court and not in the criminal jurisdiction; 7) That any event the use of tortious remedy of ejectment and expulsion by the learned Magistrate as a defence to assault is erroneous, bad law and creates a dangerous precedent for Nauru. BACKGROUND FACTS 4. The respondent is a member of Parliament. The complainant Mojtaba (complainant) was an asylum seeker who had been living in Nauru for 5 years at the time of the offence. Both the complainant and the respondent were known to each other for quite some time. 5. The complainant was a handyman. On 16 March 2017 he went to the respondent's house on his motor bike to ask him for payment of $1 ,300 which was owed to him by the respondent for painting the walls and ceiling of his house. Prior to that the complainant did some tiling in the respondent's bathroom and he was paid for that. 6. When the complainant asked the respondent for monies due to him the respondent told him to go and get a quotation; and the complainant told him that he already gave him the quotation some 8 months ago, and that the total amount owing was $1,380 for materials and labour. 7. The complainant stated as follows: "He became angry, he got up and punched me and started to swear at me. The punch, he punched me in my face, in my lips. After that I'm sitting on my motor bike, I fall on the floor and my motor bike fall down. Mr Jaden didn't stop and he sat on my chest and two times punched me again on my face. He swear to me, very bad words. I can't tell. I am shy. Can't tell the words. After he sat on my chest another man came and pulled him off me. This man was in the house."! 8. According to the complainant's version after he was assaulted by the respondent, he left on his motor bike and went to the RON Hospital where he was medically examined. 9. He later went to the police station to report the matter and the police took pictures of his 1I1Junes. 1 Paragraph 8 of the District Court Judgement page 70 of Cou rt Book 3 10. The complainant also stated that his phone which he bought for $850 was damaged. The police did not take the phone as an exhibit, nor did they take a picture of the damage to the phone. II. The respondent's version of the event is that the complainant was asked to obtain a copy of the quotation. He argued with him and he was told to leave but he kept on arguing whilst both were in the porch. So, he grabbed him by the collar and pushed him and the complainant fell down; and he was pushed a second time when he was closer to his motor bike which was some 2 to 3 metres away from his porch2 After the respondent pushed him for the second time he went back inside his house. MAGISTRATE'S FINDING 12. The Magistrate did not find the complainant to be a truthful witness and 111 his judgment, he stated as follows at [45), [46), [47), [48) and [49t [45) The medical report and photographs show that PWI's injuries are superficial and minor. The medical report was made at 5:05pm on 16 March and the doctor's professional opinion is that the complainant suffered superficial injuries of the upper and lower lip and on the left upper lateral thigh. The photographs, taken on the same date, clearly show that the injuries were minor with capillary damage to the inner lip and scratches to the upper thigh. [46) The defendant is 132kg and strongly built. The complainant is lightly built and would be about 40-50kg lighter. I would expect that a punch from the defendant to the complainant would smash his lips against his teeth and would expect cuts, swellings, a broken tooth or teeth or even a broken jaw. Such a blow would cause swelling of the tissues and a very fat ' lip' for the complainant by the time he went to the police station. Four punches were said to have been thrown at his face and I would expect 4 impact points on his face but there was only 2 - his upper lip and his lower lip. If 2 punches landed on the upper lip and 2 on the lower lip, I would be expect the injuries to be extremely serious. [47) The medical report and the photographs do not show any injuries apart from the broken capillaries at the inside of the upper and lower lips that show as slightly reddish. The doctor assessed it as superficial. None of the injuries we would expect from the punches on the face and mouth by a big, angry, powerful person were visible and I can only conclude from this that the complainant's version of the assault is not true. [48) The complainant's injuries are consistent with the version of events contained in the evidence ofthe defendant and DW3, Magellan Obeda. [49) The only conclusion open to the Court after the analysis of the evidence of assault is that the complainant is not a truthful witness. 2 Paragraph 24 of the District court Judgement Court Book page 71 , District Court Judgement pages 75 and 76 4 13. In respect of Count 2 the Magistrate stated at [5 0] , [51] and [52] as follows: [50] If I have assessed the complainant is not a truthful witness about the assault, the remainder of his evidence is in doubt. According to the complainant, the phone that was damaged was in his pocket and no other witness saw the phone to confirm the damage. There has been no proof of damage tendered in Court. No photographs were taken on the damage to the phone or the damage report compiled by someone who knows about the phones.
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