VINCI N.

CLODUMAR - PLEADER
Buada District, Nauru
Mobile: +674 557 8808; Email: vinmar51@gmail.com

Without Prejudice
4 November 2014
Wilisoni Kurisaqila
Director of Public Prosecutions
Government Offices
Yaran District
Republic of Nauru
Dear Director of Public Prosecutions,
Complaint by Public Officer against Jay Williams
Contrary to Section 107(2) of the Civil Aviation Act 2011 (Nr)
1. My name is Vinci N. Clodumar and I act for Mr Williams in the aforementioned matter.
2. I am writing to you today in a formal capacity to make representations for the withdrawal
of the charge against Mr Williams. The representations are made without prejudice and
are in no way an admission of guilt. Mr Williams reserves his right to silence and
presumption of innocence.
3. According to the particulars, on 28 October 2014, Mr Williams was charged with
entering a security restricted area namely the Aerodrome when not authorised to do so
and was reckless about the authorisation to be in that area, contrary to section 107(2) of
the Civil Aviation Act 2011 (Nr).
4. I would like to highlight a number of concerns with regard to the charge.
5. First, you have in your possession a signed letter by Adam Johnson Savage (the
driver), date of birth 19 November 1978 of 101-9 Anthony St, South Townsville, 4810,
Queensland. For your convenience, I again attached the letter at Appendix A.
6. In that statement, Mr Savage:
a) Expresses his sincere apologies and remorse for his actions;
b) Admits full culpability for the incident;
c) Takes full responsibility for his actions;
d) States that Mr Williams was an innocent passenger, sitting in the backseat of the
vehicle who directed the driver to Stop and to dont do it. Mr Savage admits that
he did not listen to Mr Williams.

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VINCI N. CLODUMAR - PLEADER

Buada District, Nauru
Mobile: +674 557 8808; Email: vinmar51@gmail.com

7. The letter by Mr Savage completely exonerates Mr Williams. At no stage was Mr

Williams in control of the driver and at no stage was Mr Williams in control of the
vehicle and at all material times, Mr Williams directed the driver to stop.
8. Second, Mr Savage was convicted and fined $1,000 for the incident.
9. Third, no other passengers were charged, except Mr Williams.
10. Fourth, while the driver and the other passenger absconded from the scene, Mr Williams
remained at the airport for over two hours and cooperated with security. Mr Williams
informed security who the driver was, where he was staying and subsequently, security
allowed Mr Williams to board the flight to Australia.
11. Fifth, Mr Williams was not interviewed by the police, he was not charged by the police
and he has not been formally served by the police.
12. Sixth, Mr Williams is charged, by way of complaint by a public officer, some nine
months after the fact and at time when he seeks admission to appear on behalf of Mr
Henshaw in contempt of court proceedings against the President, the Minister for Justice
and the Secretary of Justice.
13. Seventh, according to section 107(2) of the Civil Aviation Act 2011 (Nr), a person
commits an offence if the person:
a) is in a security restricted area; and
b) is not authorized to be in the area; and
c) is reckless about whether the person is authorized to be in the area.
14. With regard to 107(2)(a), Mr Williams was a passenger passing through the area to
embark an aircraft and was permitted to do so according to section 107(1)(d) of the Civil
Aviation Act 2011 (Nr).
15. With regard to section 107(2)(b), Mr Williams was authorized as a passenger passing
through the area to embark an aircraft according to section 107(1)(d) of the Civil Aviation
Act 2011 (Nr).
16. With regard to section 107(2)(c), Mr Williams was an innocent passenger in the backseat
of the vehicle, who directed the driver to stop. He was not in control of the driver nor
the vehicle. As such, Mr Williams did not possess the mental intent (mens rea), let alone
commit the physical act (actus reus) of the offence.
17. The elements of the offence are therefore not established.
18. Eighth, there are no witnesses to the alleged offence. The driver and passenger are off
island and do not intend to return. The driver has exonerated Mr Williams by way of
signed letter. Where a person is not available to give evidence, the hearsay rule does not
apply, where the representation was made shortly after and it is unlikely to be a
fabrication; where the representation is reliable; or where it is against the interests of the
person who made it, that being the driver, Mr Savage. See generally R V Polkinghorne
(199) 108 A Crim R 189 Levine J at [41]-[45].
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VINCI N. CLODUMAR - PLEADER

Buada District, Nauru
Mobile: +674 557 8808; Email: vinmar51@gmail.com

19. Ninth, section 51(2) of the of the Criminal Procedure Act 2012 (Nr) states that
proceedings may be instituted by any person, who believes from a reasonable and
probable cause that an offence has been committed. It cannot be said that there is a
reasonable or probable cause in this matter.
20. Ten, Mr Williams is barrister who has been engaged to represent Mr Henshaw, who filed
contempt of court actions against the President, the Minister and the Secretary of Justice
on 22 October 2014, just seven days before the charge was laid and nine months after the
fact. Please find attached at Appendix B, an aide-memoire in this respect.
21. Mr Williams has also been engaged by several hundred asylum seeker in the second
Constitutional challenge, which alleges grave human rights abuses by the hands of the
Nauru and Commonwealth governments, which is scheduled for hearing in February
2015.
22. Mr Williams filed a petition for admission to practice as a barrister in the Supreme Court
of Nauru before the Chief Justice on 10 October 2014. The notice was advertised in
Government Gazette No 148 on 22 October 2014.
23. By way of letter on 28 October 2014, the Secretary of Justice, a party to the
aforementioned matters, wrote a letter of objection to Registrar of the Supreme Court of
Nauru, objecting to the admission of Mr Williams, on the basis that Mr Williams was
charged under section 107(2) of the Civil Aviation Act 2011 (Nr). The objection and the
charge were made on the same day, some nine months after the alleged incident.
24. My client regards the charge as baseless and a continuation of the abuse of process
which saw the former Resident Magistrate, Peter Law, deported on unfounded allegations
and the cancellation of the visa of the former Chief Justice, Geoffrey Eames AO QC,
who presided in and issued multiple injunctions in the Henshaw matter. Now, a baseless
charge is brought against Mr Williams, in an attempt to block his admission and to
further obstruct the Henshaw matter and the Asylum seeker case.
25. Eleven, as you are well aware, prosecutors have a special duty to the Court and the
administration of justice.
a) A prosecutor must fairly assist the court to arrive at the truth, must seek
impartially to have the whole of the relevant evidence placed intelligibly before
the court, and must seek to assist the court with adequate submissions of law to
enable the law properly to be applied to the facts.
b) A prosecutor must not argue any proposition of fact or law which the prosecutor
does not believe on reasonable grounds to be capable of contributing to a finding
of guilt.
26. The decision to prosecute according to the Guidelines issued by the DPP should only be
initiated where there is sufficient evidence and where it is in the public interest. Neither
elements of that test are satisfied in this matter.
27. Mr Wilisoni, you are a man of great intellect, honour and integrity. You have brought
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VINCI N. CLODUMAR - PLEADER

Buada District, Nauru
Mobile: +674 557 8808; Email: vinmar51@gmail.com

many advances to the Office of Public Prosecutions in Nauru. If at any stage, the Office
of Public Prosecutions has received undue interference or pressure from members of the
executive, to prosecute the charge against Mr Williams, without foundation and without
evidence, then the Office of Public Prosecutions has a duty to the court and to the
administration of justice to vigorously resist such interference and pressure, no matter
what the professional or personal cost may be and ventilate such interference and
pressure with the Court at the first opportunity.
28. Not only are the rights and interest of Mr Henshaw at stake, not only is the integrity of
the former Resident Magistrate, Peter Law, and former Chief Justice, Geoffrey Eames, at
stake, not only are the human rights of over one thousand asylum seekers at stake, not
only is the personal and profession reputation of Mr Williams at stake, not only is the
integrity of the Office of Public Prosecutions at stake, the integrity of the rule of law and
the independence of the judiciary in Nauru must be protected and upheld.
29. Twelve, Mr Williams is a person of strong profession and personal standing, who has no
criminal convictions recorded against his name in forty three years. He is a third year
member of the New South Wales Bar Association and practitioner of the High Court of
Australia, who holds a Masters in International Law and has been published by peer
reviewed journals, including the International Journal of Human Rights. Please find
attached at Appendix C, the CV and associated documents of Mr Williams.
30. Mr Williams has appeared in the High Court of Australia, the Federal Court of Australia,
the Supreme Court of the NSW, the District Court of NSW and he Local Court of NSW.
He has worked across a variety of matters, in different jurisdictions with senior counsel
and in his own right. Mr Williams has also provided over one thousand hours of pro bono
assistance to the Nauru riot trials, the Manus Island riot trial and for an Australian citizen
facing the death sentence in Vietnam on drug trafficking charges.
31. Relevantly, Mr Williams was granted leave to appear in several matters in Nauru and was
granted admission for a particular matter by the former Chief Justice, Geoffrey Eames,
AO, QC in both the Supreme Court of Nauru and District Court f Nauru. He has visited
Nauru without incident over the previous three years. He wishes to enter into general
practice in Nauru and make a meaningful contribution to the people of Nauru.
32. Mr Wilisoni, there is simply no basis to the allegation. I am instructed to make a formal
request for the charges be withdrawn. According to section 46 of the Criminal Procedure
Act 2012 (Nr), the Director may enter a nolle prosequi and discharge the defendant.
33. According to section 153 of the Criminal Procedure Act 2012 (Nr), the prosecutor may
with the consent of the Court withdraw the charge at any time before the final order.
34. According to section 171 of the Criminal Procedure Act 2012 (Nr), where at the close of
the case for the prosecution or after receiving any evidence in defence, the Court
considers that the evidence against the accused is not sufficient to put him on his trial, it
shall be forthwith order him to be discharged.
35. According to section 120 of the Criminal Procedure Act 2012 (Nr), if on the acquittal of
an accused or the dismissal of any charge the District Court is of opinion that the charge
was frivolous or vexatious, the Court may order the complainant to pay to the accused in
addition to his costs a reasonable sum as compensation for the trouble and expense to
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VINCI N. CLODUMAR - PLEADER

Buada District, Nauru
Mobile: +674 557 8808; Email: vinmar51@gmail.com

which he has been put by reason of the charge.

36. I am instructed to vigorously defend the charge on the basis that there is no prime facie
case and I am instructed to commence an abuse of process action and malicious
prosecution lawsuit, if the charge is not withdrawn. This may result in aggravated
damages, personal cost orders and indeed professional disciplinary action.
37. Mr Williams has engaged senior counsel from NSW and has briefed the NSW Bar
Association, the Australian Bar Association, the Pacific Law Association and the New
Zealand Bar Association, who have expressed deep concern with the prosecution.
38. Can you please advise of your decision as to whether to withdraw the charges by close of
business on Tuesday 4 November 2014, ahead of the mention on 5 November 2014.
39. Please do not hesitate to contact me if you require any further assistance.
Yours Sincerely
...
Vinci N. Clodumar
Pleader for the Defendant

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