R v Bartlett [2004] SBCA 8; CA-CRAC 020 of 2004 (8 November 2004)

SOLOMON ISLANDS COURT OF APPEAL

FILE NO/S: Appeal No 20 of 2004

PARTIES:

R

V

BARTLETT, Alex
(appellant)

DIVISION: Court of Appeal
PROCEEDING: Appeal against refusal of bail
ORIGINATING COURT: High Court in Honiara

DELIVERED ON: 8 November 2004
DELIVERED AT: Honiara
HEARING DATE: 5 November 2004

JUDGES: Lord Slynn President and Goldsbrough and Williams JJA

Judgment of the Court

ORDER: Appeal struck out

COUNSEL: K Averre for the appellant
R Barry, with S Balea, for the respondent

[1] THE COURT: The appellant was arrested on 2 September 2004 in Honiara and charged with a number of offences:

(i) Demanding money with menaces contrary to section 249 of the Penal Code;
(ii) False Pretences contrary to section 308 of that Code;
(iii) Procure others to commit an offence contrary to section 381 of the Code;
(iv) Arson contrary to section 319 of the Code;
(v) Possession of firearm and ammunition without a licence.

[2] He was brought before the Magistrates' Court when the prosecution asked that he be remanded in custody. He asked for bail but the Magistrate remanded him in custody until 9 September. He then applied to the High Court for bail: the prosecution asked that he be remanded in custody without bail for 14 days. His application was heard on 10 September and on 17 September the Hon Mr Justice Brown refused his application.
[3] By notice of appeal dated 21st September 2000 against the judge's decision the appellant complained that the refusal of bail was unfair and unreasonable and that the decision be quashed. This Court heard counsel for the appellant and for the respondent on Friday 5 November when the Respondent contended that the Court had no jurisdiction to hear the purported appeal. The respondent says that the power to grant bail must be found in a statute and there is no statutory provision which enables an appeal from a decision of the High Court refusing an application for bail. By section 3(2) (a) of the Court of Appeal Act "the power and jurisdiction to hear and determine all appeals which lie to the Court by virtue of the Constitution this Act or of any other law for the time being in force."
[4] The Court has been referred to a number of provisions of the Court of Appeal Act Cap 6 and of the Criminal Procedure Code none of which it is contended by the prosecution give this Court the power to hear such an appeal.
[5] It is contended by the respondent that an application for bail by a person arrested and charged with a criminal offence is a criminal proceeding. It follows that no reliance can be placed on Part III of the Court of Appeal Act which deals with appeals in matters "not being a criminal proceeding" (see section 11(1) in Part III). This means that the provision of section 11(2) (f) (i) which is at first glance in wide terms

"without the leave of the Judge or of the Court of Appeal from any interlocutory order a interlocutory judgment made or given by a judge of the High Court except in the following cases, namely—

(i) where the liberty of the subject or the custody of infants is concerned;"

is only applicable in cases where the judge has made an interlocutory order or judgment in a matter which is not a criminal proceeding. In the opinion of this court the appellant is seeking to appeal in a matter which is a criminal proceeding so that s 11(2) (f) (i) is not applicable.
[6] Section 16 of the Act provides that "Notwithstanding anything hereinbefore contained, the Court of Appeal may entertain an appeal under the provisions of this Part of this Act on any terms which it thinks just." In the view of this Court the opening words cannot be read as overriding the essential jurisdiction provision of article 11(1) "not being a criminal proceeding": they are dealing with other qualifications which do not remove entirely the jurisdictional limitation.
[7] Part IV of the Act deals with Appeals in Criminal Cases. There is no express provision that a person is able to bring an appeal to the Court of Appeal against the refusal to grant bail by a judge on an application made to him for such bail. Section 35 of the Act provides that the powers of the Court of Appeal under Part IV of the Act to admit an appellant to bail "may be in the first place by any judge of the Court and subject to the same provision. This section does not create a right of appeal unlike section 33 which empowers the Court of Appeal to admit an appellant to bail pending "the determination of his appeal." i.e. an appeal by a person against conviction or sentence in accordance with section 20 of the Act. The appellant is not such a person.
[8] Section 283 of the Criminal Procedure Code provides that "(1) Save as hereinafter provided, any person who is dissatisfied with any judgment, sentence or order of a Magistrate's Court in any criminal cause or matter to which he is a party may appeal to the High Court against such judgment, sentence or order." By Section 22(1) any party to an appeal from a Magistrate's Court to the High Court may appeal under this part of the Act, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which concerns a question of law only. The appellant did not seek to appeal the Magistrate's Court’s decision and to do so on a ground of law only.
[9] This Court has not been referred to any other provision of the Constitution the Court of Appeal Act or any other provision of law for the time being in force. It may seem inconsistent that there is power to go to the High Court by way of appeal and then to the Court of Appeal but not to go to the Court of Appeal by way of appeal directly from a decision of a High Court judge relating to bail. But this appears to this Court to be the consequences of the Court of Appeal Act and it may be a matter for Parliament to consider whether such a right should be granted bearing in mind that there is power to make further application to the High Court or another High Court in the light of new material or changed circumstances.
[10] In the present circumstance this Court accepts the prosecution's submissions that the Court has no jurisdiction to hear an appeal from the order of Brown J in the way in which it has been lodged, though it is fully understandable that Mr Averre should seek to bring it in this way.
[11] We propose, however, to look at the case as if it had proceeded by way of an appeal from the Magistrate's Court to the Judge and to treat the hearing before us as the hearing of an appeal from the judge to the Court of Appeal. There is one immediate difficulty, since an appeal can be on a point of law only. This application to the judge was not so limited though it contained claims that there had been an error of law.
[12] In the light of the full argument by Counsel of both parties and assuming jurisdiction on the lines indicated this Court would dismiss the appeal from Brown J. In the circumstances it can state its reasons shortly.
[13] It is clear that the question should be approached with a presumption in favour of granting bail and that the onus is not on the appellant to establish that he should be granted bail but on the prosecution to show that he should not.
[14] In this case the charges are all serious and the potential maximum sentence provided are high. There are, as the learned judge appeared to be satisfied, allegations which if accepted at the trial would be likely to lead to conviction on some and perhaps all of the charges, and prima facie the information appears to come from reliable sources.
[15] As the Judge found there is a real probability that pressure may have been put on and may be put on persons connected with these charges. The seriousness of the charges increases that risk. Moreover he was Secretary General of the Malaitan Eagle Force which is described as a para military force, a man of authority and power in the country with the potential of exercising considerable influence.
[16] On the other hand he is a Member of Parliament who has held Ministerial office, and apparently a respected member of his Church. He appears to have a stable family background supported by his wife with a fixed residence and a substantial business.
[17] We have taken all these factors and others relied on by Mr Averre (such as the dates of the events relied on in the charges) in his forceful argument into consideration. We cannot say that the learned judge erred in law in his assessment of the risk of witnesses being approached, interfered with or suborned whereby the Crown's case would be weakened. The judge was entitled to conclude that the imposition of conditions would not in the circumstances of this case give adequate protection.
[18] Accordingly if we had held that we had jurisdiction we would have dismissed the appeal on the information presently before the judge and before us.
[19] In the circumstances the appeal is struck out on the ground the court has no jurisdiction.