Diehm v DPP (Nauru) [2013] HCA 42

The High Court has unanimously dismissed an appeal from a decision of the Supreme Court of Nauru in Diehm v DPP (Nauru) [2013] HCA 42, which had found the appellants guilty of rape following a trial by judge alone.

Facts of the Case

The first and second appellants, who were husband and wife, were convicted of the rape of the wife's niece. The husband was charged as the principal and the wife as an accessory to the rape.

The complainant said that, following a quarrel with her boyfriend, she went to the appellants' house. The wife at this time suggested repeatedly to her that she have sex with the husband. The complainant rejected these suggestions, until the wife confronted her with a knife. It was alleged that the husband then had sexual intercourse with her and the wife performed oral sex on her.

The complainant's mother, who had been on the phone to the complainant when the attack took place, notified the police, who attended the scene. One officer asked the appellants whether the complainant was in the house, and both said no. The second officer was not called to give evidence, but said in his police report that the question was whether "a lady" was "locked up" in the house. The first appellant testified that he had truthfully denied having anyone locked up. The trial judge referred to the second officer's statement, although it was not in evidence, in order to determine whether the failure to call him as a witness could give rise to a miscarriage of justice.

High Court Appeal

The husband and wife appealed their case to the High Court pursuant to the Nauru (High Court) Appeals Act 1976 (Cth). They put forward that a reasonable tribunal of fact could not have concluded beyond reasonable doubt that the appellants were guilty of rape without the testimony of the second officer. They claimed that the prosecutor should have called the second officer as a witness, or the trial judge should have called him. They also objected to the trial judge referring to the statement of the second officer despite that statement not being in evidence.

The High Court unanimously dismissed the appeal, finding that the failure to call the second officer as a witness did not give rise to a miscarriage of justice. The statutory obligation under s 100(1) of the Criminal Procedure Act 1972 (Nauru) of the trial judge to call a witness was not relevant in this case, because his evidence was not essential to the outcome of the case and occasioned no breach of natural justice.

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