Criminal Law (Nauru) - Power of appeal court to order new trial if conviction quashed - Principles - Whether High Court should order new trial when appeal court not asked to - Appeals Act 1972 (Nauru), s. 14(3).

Statutes - Construction - Absurdity - Criminal law - Power of court allowing appeal against conviction to "either quash conviction and direct acquittal or order new trial" - Whether power to order new trial if conviction quashed - Literal reading producing absurdity - Appeals Act 1972 (Nauru), s. 14(3).

GIBBS C.J., MURPHY, WILSON, DEANE and DAWSON JJ. This appeal, from a judgment of the Supreme Court of Nauru, is brought pursuant to leave granted under the Nauru (High Court Appeals) Act 1976 (Cth). The appellant is the Director of Public Prosecutions for Nauru. The respondent, Mr Michael Fowler, came before a Resident Magistrate on seven charges, to all of which he pleaded not guilty. After a hearing, he was convicted by the magistrate of three offences, viz.: (1) common assault, contrary to s.335 of the Criminal Code of Queensland, which is applied as part of the law of Nauru; (2) offensive behaviour in a dwelling house contrary to s.5(d) of the Police Offences Ordinance 1967 (Nauru); and (3) threats, contrary to s.359 of the Criminal Code. He was sentenced to one month's imprisonment for the first of those three offences, and to ten days' imprisonment for the third offence, and it was ordered that the sentences should run concurrently. For the second offence, a fine of $10.00 was imposed. The respondent appealed to the Supreme Court of Nauru in its appellate jurisdiction. The appeal was heard by Daly C.J. who allowed the appeal and quashed the convictions on the three charges. The present appeal is brought from that decision.

2. The respondent was, at the time of the alleged offences, the Operations Manager of the Nauru Phosphate Corporation. The complainant in respect of the charges, a Mr Mukundan, who was an employee of that Corporation, had been given notice by the respondent of the termination of his employment and had been informed that in consequence he would have to leave the island. The case for the prosecution was that Mr Mukundan had sought the intervention of high officials of the Government of Nauru in the hope that he might retain his employment and remain on the island, and that the respondent, who objected to this attempt to seek assistance, had entered Mr Mukundan's house and abused, threatened and assaulted him. There was a marked conflict between the evidence given for the prosecution and that given for the defence, but the question was one of credibility and the magistrate was entitled to accept the evidence for the prosecution. However, the magistrate received a body of evidence which, as Daly C.J. found, was hearsay and inadmissible. Daly C.J. said that although there was admissible evidence upon which the magistrate could have been satisfied of the guilt of the respondent, there was also "a body of inadmissible evidence of such quality and of such a prejudicial nature" that he could not be certain that any court without that evidence would have reached the same conclusion. He did not consider that the case was one in which it was proper to apply the proviso to s.14(2) of the Appeals Act 1972 (Nauru) and accordingly quashed the convictions.

3. Before us, Mr Lloyd, who appeared for the Director of Public Prosecutions, very properly abandoned the grounds of appeal which asserted that the Supreme Court was wrong in holding that the magistrate had relied on inadmissible evidence and in quashing the convictions. There can be no doubt that the inadmissible evidence was likely to have affected the magistrate's decision, and the convictions could not be allowed to stand. However, it was submitted on behalf of the Director of Public Prosecutions that in the circumstances the learned Chief Justice should have ordered a new trial on the three charges.

4. By s.14(3) of the Appeals Act it is provided as follows:

if s.14(3) is construed in its strict grammatical sense, it creates a difficulty, for it appears to suggest that the alternatives open to the Supreme Court when it allows an appeal are (1) to quash the conviction and direct a judgment and verdict of acquittal to be entered, and (2) if the interests of justice so require, to order a new trial; or in other words that a new trial cannot be ordered if a conviction is quashed. It is however apparent that a simple grammatical mistake was made in the drafting of the subsection, and that if the strict grammatical sense of the words is adhered to it would lead to an absurdity. In these circumstances the Court is entitled to attribute to the provision the meaning which it was obviously intended to have. Section 14(3) must therefore be read as though the word "either" appeared not before the words "quash the conviction" but before the words "direct a judgment".

5. The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused. The alleged misuse by the respondent of his position as a senior officer of the Phosphate Corporation might have been regarded as a reason in favour of granting a new trial, whereas, on the other hand, the facts that the respondent was no longer on the island of Nauru and that the offences were thought to warrant only one month's imprisonment and a small fine might have been thought to provide arguments to the contrary. These were matters that should have been weighed by the Supreme Court in deciding how its discretion should be exercised.

6. Daly C.J. did not however exercise the discretion which s.14(3) of the Appeals Act conferred upon him. He did not consider whether he should grant a new trial, possibly because he was more familiar with the law of England, under which in general there is no power to order a new trial when a conviction is quashed, than with that of Nauru and Australia, which empowers a court of criminal appeal to order a new trial. However, Daly C.J. was not asked by counsel who appeared for the prosecution to order a new trial. That provides a decisive reason why this Court should not intervene in this case. It would not be just for this Court to order a new trial in a criminal case when the Supreme Court on appeal was not asked by the prosecution to do so, and accordingly did not consider the question. The assessment of the factors which the court is required to weigh in the exercise of its discretion was peculiarly a matter for the Supreme Court, with its greater familiarity with local conditions, and this Court, which has not had the assistance which a judgment of the Supreme Court would have provided in that regard, should not now proceed to exercise the discretionary power which the Supreme Court was not requested to, and did not, exercise.

7. It follows from what has been said that, notwithstanding Daly C.J.'s failure to consider whether the interests of justice required that he exercise the power which s.14 of the Appeals Act confers upon the Supreme Court to order a new trial, the appeal will be dismissed.

In accordance with the condition already imposed, order appellant to pay respondent's costs (if any).