[1980-1989] NLR
[Ed – No page no. in original]

IN THE SUPREME COURT OF NAURU

CIVIL JURISDICTION

MISCELLANEOUS CAUSE No. 3 OF 1980

IN THE MATTER of an application for certiorari to remove District Court Criminal Case No: 721 of 1979 into the Supreme Court and to quash the conviction and set aside the sentence therein.

CRAIG DEIDENANG
Applicant

vs

SECRETARY FOR JUSTICE
Respondent

REASONS FOR DECISION

This is an application for an order of certiorari to remove into this Court Criminal Case No: 721 of 1979, to quash the conviction therein and to set aside the sentence of nine months' imprisonment. It is the applicant's submission that the proceedings were a nullity because two separate charges against two separate accused persons were tried together.

The record of the proceedings in Criminal Case No: 722 of 1979 reveals that there were indeed originally two separate charges, one against the applicant and the other against his brother. A separate case file was opened for each. Before the trial of either case began, Mrs. Billeam, who represented the applicant in the District Court and has represented him in this Court, informed the District Court that she had "no objection to this charge" (i.e. the charge against the applicant's brother) "being joined with that in Criminal Case No: 721/79" (i.e. the charge against the applicant). She was representing both the applicant and his brother. It is to be observed that she did not speak in terms of the two cases being tried jointly but in terms of the charges being joined. The magistrate then recorded: "These proceedings will be joined with those in Criminal Case No: 721/79; this charge will now be marked the 2nd count, and the offence of Occasioning Actual Bodily Harm against Craig Deidenang will become the 1st count." The use of the expression "count" indicates clearly that he was framing a new charge with the charge in Criminal Case No: 721 of 1979 as the first count and the charge in Criminal Case No: 727 as the second. 

Section 92(1)(d) of the Criminal Procedure Act 1972 authorises the joinder in one charge, and the joint trial, of "persons accused of different offences in the course of the same transaction". It is not disputed that the charges in Criminal Cases Nos: 721 and 722 were of offences alleged to have been committed in the course of the same transaction; and Mrs. Billeam has conceded that the prosecutor could lawfully have commenced proceedings originally by a charge containing the offences charged in those two criminal cases. But she has submitted that, since the offences were charged in separate charges, they could not thereafter be joined together to form one charge.

Insofar as that submission is based on the premise of the two charges remaining separate, it is clearly correct. But that was not what happened in Criminal Case No: 722. Each of the two offences were charged in a separate count of one charge. What in fact happened was that the two separate charges were withdrawn and replaced by one charge. The process was telescoped, as so often in magistrates' courts, into a brief note of the end result of what was done. What was done was perfectly lawful, although it would have been helpful if the precise steps on the way to the result had been more fully set out. As Mrs. Billeam has concluded, she consented to what was done and so, tacitly, did the prosecutor. The applicant was not prejudiced either by the joinder of himself and his brother in one charge or by the fact that the steps taken by the learned magistrate in replacing the two charges by one were not more fully set out.

Accordingly the trial of the applicant on the new charged was not a nullity. The application for an order of certiorari is dismissed.