Ruling reopens prospect of trial for group including former MPs over charges related to anti-government protests in 2015

The so-called Nauru 19’s fight against prosecution is “back at square one” after a court of appeal threw out a permanent stay of prosecution on Friday.

The ruling, which was based largely on technicalities of jurisdiction, reopens the prospect of trial for the Nauruan group, which includes former MPs, over charges related to anti-government protests in 2015.

In September an independently appointed supreme court judge, Geoffrey Muecke, found the group of Nauruans were deemed to have no prospect of receiving a fair trial because of the “shameful” lengths the government had gone to in seeking their imprisonment.

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Muecke said the government was “willing to expend whatever resources, including financial resources, as are required to achieve that aim”, including operating an unwritten blacklist to ensure the Nauru 19 were unable to find work on the island, rent houses, or, in some cases, leave the country.

He granted a permanent stay of prosecution against the group and ordered that the Republic of Nauru pay more than $300,000 in court costs.

However, the government fought the ruling and on Friday the Nauru court of appeal – which was established late last year after the Nauru government quietly severed longstanding ties with the Australian high court – threw out all of Muecke’s orders.

The ruling, by justices Sir Albert R Palmer, Nicholas Kirriwom and Michael Dishington Scott, said Muecke had been appointed to the supreme court solely for the purpose of hearing and deciding the criminal case against the group, and “went beyond his jurisdiction in entertaining” constitutional issues.

Mathew Batsiua, a former Nauruan minister and member of the Nauru 19, said the judgement was “frustrating” but that it was highly technical and did not rule against any of the findings made by Muecke about the conduct of the Nauruan government.

“As I see it we are basically back to square one,” he said. “A potential next step open to us is to again seek a permanent stay of proceedings, on all the grounds that have previously been raised. These could include challenging the new law that blocks access to foreign lawyers, [but] this time before a judge who has the power to determine constitutional issues.”

Friday’s ruling said Muecke’s decision to grant a permanent stay rather than an interim or conditional one was an “extreme step”, which should not be taken “unless the court is satisfied that the continuation of the prosecution is oppressive, vexatious and inconsistent with the recognised purposes of the administration of criminal justice and therefore constitutes an abuse of the process of the court”.

The Nauru 19 had in fact put forward that their prosecution was severe enough to breach constitutional rights to a fair trial but the appeal judges dismissed Muecke’s ruling because thy said he had no jurisdiction to rule on constitutionality.

A second argument that the original protests were provoked “by grave executive illegality”, which undermined Nauruan democracy and rule of law, raised questions of fact that could only be addressed at trial, the ruling said.

Muecke’s original judgment was a damning indictment on the conduct of the Nauruan government and included accusations that legislation limiting legal aid had been introduced to “frustrate” the defendants’ legal efforts.

However, the appeal judges found that conclusion to be “unacceptably speculative”, and reached by “a process of reasoning which we have to say we find to be quite unnecessarily tenuous”.

They said the serious question of whether the defendants were refused legal assistance was not adequately investigated.

The long-running case stems from a 2015 rally, protesting against the expulsion from parliament of three MPs who had criticised the government in media interviews. The rally escalated and rocks were thrown through parliament’s windows. Nineteen people were charged with various offences including rioting.

Some pleaded guilty but most defended themselves.

A lead respondent to the case, former Nauruan president Sprent Dabwido, died earlier this year, following terminal cancer, which he, his family, lawyer and doctor claim was exacerbated by the government holding his passport and preventing him from seeking treatment overseas.

The judgment also accused the Nauru 19’s legal team of addressing the court in an “intemperate and disrespectful manner” in submitting a document suggesting that any decision remitting the matter for trial could be perceived by observers as “representing that this court is the plaything of the executive or at best a court which erroneously placed all weight on the interest of prosecuting crimes … and no weight on protecting human rights”.

The Nauruan government welcomed the ruling, saying the court of appeal’s first decision heralded a “new era”.

“Minister of justice Hon David Adeang MP said the first sitting of the court was historic and highlighted the great strides Nauru has made in creating an accountable and high-quality justice system, something the Waqa government made a priority when it took office in 2013,” the government said in a statement.