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PART V - MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
145 Evidence to be taken in presence of accused
Except as otherwise expressly provided, all evidence taken in any inquiry or trial under this Act shall be taken in the presence of the accused or, where his personal attendance has been dispensed with, in the presence of his barrister and solicitor or pleader if any :
Provided that nothing in this section shall render it unlawful for any Court to take evidence in an inquiry or trial in the absence of the accused, if he has by his misconduct in court prevented the taking of such evidence in his presence.
PART V - MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
149 Interpretation of evidence to accused
(1) Where any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him in open court in a language which he understands.
(2) Where documents are put in for the purpose of formal proof it shall be in the discretion of the Court to interpret to the accused as much thereof as appears necessary.
PART VI - PROCEDURE IN TRIALS BEFORE THE DISTRICT COURT
151 Court may proceed with hearing in absence of accused in certain cases
(1) Notwithstanding the provisions of section 145 of this Act, if an accused who has sent to the Court a plea of guilty in writing or is charged with any offence for which upon conviction the maximum sentence which can be imposed is a fine not exceeding two hundred dollars or imprisonment, otherwise than in default of payment of a fine, for a period not exceeding six months or both such fine and imprisonment does not attend in the District Court at the time and place appointed in and by the summons or by any bond for his attendance that he may have entered into, and his personal attendance has not been dispensed with under section 61 of this Act, the Court may, on being satisfied that the plea of guilty in writing is unequivocal or on proof of the proper service of the summons a reasonable time before, or on production of the bond, as the case may be, proceed to hear and determine the case in the absence of the accused or may adjourn the case and issue a warrant for the arrest of the accused in accordance with the provisions of section 63 of this Act.
(2) Notwithstanding the provisions of the preceding subsection, no person shall be tried in his absence unless he has consented thereto :
Provided that, where any person has been served with a summons containing a direction made under section 61 for his personal attendance to be dispensed with and the summons is endorsed with a notice that, if he does not attend, he will be deemed to have consented to the trial taking place in his absence, he shall be deemed to have so consented.
PART VI - PROCEDURE IN TRIALS BEFORE THE DISTRICT COURT
155 Non-attendance of parties after adjournment
(1) If at the time and place to which the trial or further trial of any criminal proceeding is adjourned by the District Court, the accused does not attend before the Court, and he has consented, personally or by his barrister and solicitor or pleader, if any, to the trial taking place in his absence, the Court may, in its discretion, proceed with the trial or further trial as if the accused were present, and if the complainant does not attend, himself or by his barrister and solicitor or pleader, the Court may dismiss the charge with or without costs as the Court shall think fit.
(2) Where an accused who has not attended before the District Court at the time and place to which the trial, or further trial, of any criminal proceeding has been adjourned, has not consented to the trial taking place in his absence or the Court has in its discretion not proceeded with the trial or further trial, the Court may issue a warrant for his arrest and for him to be brought before the Court and shall further adjourn the trial or further trial accordingly.
PART VI - PROCEDURE IN TRIALS BEFORE THE DISTRICT COURT
156 Conviction in absence of accused may be set aside
If the District Court convicts any accused in his absence, it shall set aside such conviction upon being satisfied that his absence was from causes over which he had no control and that he had a probable defence on the merits.
PART VII - COMMITTAL OF ACCUSED PERSONS TO THE SUPREME COURT FOR TRIAL
163 Charge to be read over to accused
At the commencement of a preliminary inquiry the Court shall read over and explain to the accused the charge in respect of which the inquiry is being held, and shall explain to him that he will have an opportunity later on in the inquiry of making a statement if he so desires, and shall further explain to him the purpose of the proceedings, namely to determine whether there is sufficient evidence to put him on his trial by the Supreme Court.
PART VII - COMMITTAL OF ACCUSED PERSONS TO THE SUPREME COURT FOR TRIAL
164 Depositions
(2) The accused may put questions to every witness and the answer of the witness thereto shall form part of the deposition of that witness.
PART VII - COMMITTAL OF ACCUSED PERSONS TO THE SUPREME COURT FOR TRIAL
168 Provisions as to taking statement or evidence of accused person
(1) If, after the prosecutor has adduced his evidence and closed his case, the Court considers that on the evidence as it stands there are sufficient grounds for committing the accused for trial, it shall satisfy itself that the accused understands the charge and shall ask the accused whether he wishes to give evidence on oath, to make an unsworn oral statement, to tender a written statement in accordance with section 166 or to refrain from doing any of these things. The Court shall also explain to the accused that he is not bound to give evidence or to make or tender any statement and that, if he does so, his evidence or statement may be made part of the evidence at the trial, if he is committed for trial.
(2) Everything which the accused says, either by way of sworn evidence or unsworn oral statement, shall be recorded in full inrecorded in full in English and shall be shown or read over to him, and he shall be at liberty to explain or add to anything contained in the record thereof. When the whole is made conformable to what he declares is the truth, the record shall be attested by the magistrate having charge of the proceedings who shall certify that the sworn evidence or the unsworn oral statement was given, or made, in his presence and hearing and contains accurately the whole evidence given or unsworn oral statement made, as the case may be, by the accused. The accused shall be required by the Court to sign, or attest by his mark, such record. If he refuses, the Court shall add a note of his refusal and the record may be used as if he had signed or attested it.
(3) Where the accused tenders a statement made by him in writing in accordance with section 166 of this Act the provisions of that section shall apply mutatis mutandis, with the exception of those contained in paragraphs (c) and (d) of subsection (2) and in subsection (4).
PART VII - COMMITTAL OF ACCUSED PERSONS TO THE SUPREME COURT FOR TRIAL
169 Evidence and address in defence
(1) Immediately after complying with the requirements of section 168 relating to the evidence or unsworn oral statement of the accused, and whether the accused has or has not made or tendered a statement or given evidence, the Court shall ask him whether he desires to call any witness on his own behalf or to tender any written statement by any person other than himself in accordance with section 166 of this Act.
(2) The Court shall take the evidence of any witnesses called by the accused, or receive any written statement tendered in accordance with section 166 of this Act, in like manner as in the case of the evidence adduced by the prosecutor and that evidence and statement shall beshall be deemed to be depositions.
(3) If the accused states that he has any witness to call but that he is not present in court, and the Court is satisfied that the absence of that witness is not due to any fault or neglect of the accused and that there is a likelihood that he could, if present, give material evidence on behalf of the accused, the Court may adjourn the inquiry in order to enable the evidence of that witness to be taken or his statement to be tendered under section 166 of this Act and may issue process, or take other steps, tosteps, to compel the attendance of that witness.
(4) In any preliminary inquiry under this Part, the accused, or his barrister and solicitor or pleader if any, shall be at liberty to address the Court :
(a) if no witnesses for the defence are to be called and the accused does not give evidence or make or tender any statement, at the close of the prosecutor's case ;
(b) if no witnesses for the defence are to be called but the accused gives evidence or makes or tenders a statement, immediately after the evidence or statement of the accused person has been taken or received ; or
(c) if the accused calls any witnesses for the defence or tenders the written statements of any witnesses, immediately after the evidence of those witnesses has been taken or their statements received.
(5) If the accused, or his barrister and solicitor or pleader if any, addresses the Court in accordance with the provisions of subsection (4) of this section, the prosecutor shall have a right to reply.
PART VIII - PROCEDURE IN TRIALS BEFORE THE SUPREME COURT
189 Accused absent
Where on the day and at the time set for the trial of any information the accused is not present in court, the Court shall adjourn the trial and may, unless the accused is in lawful custody, issue a warrant for him to be arrested and brought before the Court :
Provided that where the information charges more than one person and one or more of those persons is present in court, the Court may, in its discretion, either adjourn the trial of all the accused or proceed with the trial of those of them who are present and order that the accused who is absent be tried separately.
PART VIII - PROCEDURE IN TRIALS BEFORE THE SUPREME COURT
190 Accused to be called upon to plead
(2) If the accused admits the truth of the information, his admission shall be recorded as nearly as possible in the words used by him or in an English translation of those words and the prosecutor shall then state the details of the offence alleged.
(3) If the accused admits the truth of the details of the offence stated by the prosecutor and they constitute the offence charged, the Court shall record a finding that he is guilty of that offence; if he denies the truth of any of those details, the Court shall record that he has pleaded 'not guilty'.
(4) Where the Court has recorded a finding under this section that an accused is guilty of the offence charged, it shall, after hearing him, or his barrister and solicitor or pleader if any, as to any mitigating circumstances and any evidence thereof which may be advanced, either convict him and pass sentence on, or make an order against, him in accordance with the law or, if authorised by any written law to do so, discharge him without proceeding to conviction.
PART VIII - PROCEDURE IN TRIALS BEFORE THE SUPREME COURT
200 Evidence or statement of accused at preliminary inquiry
The evidence or statement, if any, given or made by the accused and duty recorded in the preliminary inquiry, and whether signed by the accused or not, and any written statement tendered by or on behalf of the accused at the inquiry may be tendered in evidence by the prosecutor without further proof thereof, unless it is proved that the magistrate who is purported to have signed the statement or evidence did not in fact sign it.
PART VIII - PROCEDURE IN TRIALS BEFORE THE SUPREME COURT
201 Close of case for prosecution
Where the evidence of the witnesses for the prosecution has been concluded and any written statements and depositions properly tendered in support of the prosecution case have been admitted, and the evidence or statement, if any, of the accused taken in the preliminary inquiry has, if the prosecutor wishes to tender it, been tendered in evidence, the Court :
(b) if it considers that a case is made out against the accused or any one or more of several accused in respect of any offence charged or any other offence of which he may lawfully be convicted on the trial of that offence, shall inform every such accused of his right to address the Court, either personally or by his barrister and solicitor or pleader, if any, and to give evidence on his own behalf or to make an unsworn statement or to refrain from doing either of these things and to call witnesses, or tender statements under the provisions of section 146, in his defence ; and in all cases the Court shall require him, or his barrister and solicitor or pleader if any, to state whether he intends to call any witnesses as to fact other than the accused himself. If the accused says that he does not intend to give evidence or make an unsworn statement or to adduce evidence, then the prosecutor, or the barrister and solicitor or pleader conducting the prosecution, may sum up the case against him. If the accused says that he intends to give evidence or make an unsworn statement, or to adduce evidence, the Court shall call upon him to enter upon his defence.
PART VIII - PROCEDURE IN TRIALS BEFORE THE SUPREME COURT
202 The defence
The accused, or his barrister and solicitor or pleader if any, may open his case, stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. The accused may then give evidence or make an unsworn statement on his own behalf and he, or his barrister and solicitor or pleader if any, may examine his witnesses, if any, and after their cross-examination, re-examine them, and may tender written statements in accordance with the provisions of section 146 of this Act. At the close of the accused's case, he or his barrister and solicitor or pleader if any, may sum up his case.
PART VIII - PROCEDURE IN TRIALS BEFORE THE SUPREME COURT
203 Additional witnesses for the defence
The accused shall, subject to the provisions of section 148 of this Act, be allowed to call any witness in attendance who can give relevant evidence, whether or not that witness gave evidence at the preliminary inquiry. If he apprehends that any person whom he wishes to call as a witness will not attend the trial voluntarily, he shall be entitled to apply for the issue of process to compel his attendance :
Provided that no accused shall be entitled to any adjournment to secure the attendance of any witness unless he shows that he could not have taken earlier steps to obtain, or by reasonable diligence have obtained, the presence of the witness.
PART IX - SUPPLEMENTARY PROVISIONS
213 Power to issue directions of the nature of habeas corpus
(1) The Supreme Court may, where it thinks fit, direct :
(a) that any person within Nauru be brought before the Court to be dealt with according to law ;
(b) that any person illegally or improperly detained in public or private custody within Nauru be set at liberty ; and
(c) that any prisoner detained in any prison be brought before any Court to be there examined as a witness in any matter pending or to be inquired into in that Court.
(2) The Chief Justice may from time to time make rules to regulate the procedure in cases under this section.
Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.