Konare v DPP [1984] SBHC 10; [1984] SILR 33 (8 June 1984)

[1984] SILR 33

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 11 of 1984

KONARE

v

DPP

High Court of Solomon Islands
(John Freeman, Commissioner)
Criminal Appeal Case No. 11 of 1984

8 June at Honiara
Judgment 8 June 1984

Bail - jurisdiction of High Court to reduce amount required -means of accused and extended family to be taken account of - considering forfeiture - whether evidence required.

Facts:

The appellant Konare was charged with being drunk and disorderly and bailed in his own recognisance of $30 to appear before a magistrate. He failed to do so. Later he appeared before a principal magistrate, pled guilty and was fined $10 and his recognisance estreated.

Konare filed a petition in the High Court -

Held:

(1) applying for reduction of bail (under S.106 (3) Criminal Procedure Code)

(2) appealing against the forfeiture ordered by the magistrate.

Held:

1. Bail on forfeiture becomes a civil debt and is no longer; so cannot be reduced by S. 106(3) Criminal Procedure Code, can only be cancelled or mitigated by the court which imposed it.

2. A court imposing forfeiture must take the means of the accused into account. However, in Solomon Islands, it could safely be presumed that he would receive help from his extended family up to a reasonable amount (Inito -v-R. [1983] SILR 177 applied).

3. Where this presumption applied, it was unnecessary to hear evidence of means. (Obiter); when weighing other considerations with a view to forfeiture, evidence (e.g. of excuses put forward) is desirable in complicated or seriously doubtful cases, but is not essential in every case. (Nuapitu -v- R. (CRAC 13/83, unrep.) considered).

Application for reduction of bail and appeal against forfeiture dismissed.

Reginald Teutao for the appellant
Francis Mwanesalua, Director of Public Prosecutions, in person

John Freeman: On 16 December 1983 Barnabas Konare and Samo Tagini were charged with being drunk and disorderly the previous night. A police officer released them on bail in their own recognisance of $30 to appear before a magistrate at Auki on 4 January 1983. Tagini did, plead guilty and was fined $10; Konare did not, so a warrant was issued for his arrest. He was finally brought before the Chief Magistrate for Malaita on 14 May. On that day he was lucky enough to be represented by counsel; he too pled guilty and was fined $10. But his recognisance of $30 was estreated. He now appeals “against the quantum of bail required by a police officer and estreated by the Magistrate’s Court”. So this appeal is really in two parts: first a petition to this court to exercise its discretion under section 106(3) CPC to reduce the amount of bail; second, an appeal (under section 115) against the order made by the learned magistrate under section 114 CPC. Counsel for the appellant at one stage relied on the proviso to section 114(7) (“... that the court ... may in its discretion cancel or mitigate the forfeiture”). Later he rightly accepted that “the court” must mean the court which imposed the forfeiture, and not an appellate court.

As to the amount of bail required by the police officer, is it too late for it to be reduced when it has already been estreated? In my judgment it is too late; once forfeiture has been ordered, the money is no longer a recognizance or bail, but (as the learned magistrate observed) a civil debt to the Crown much like any other. Unless the forfeiture is quashed or reduced on appeal or review, only the court which ordered it can remit it under section 114(7). So I need not say anything about the sum required in this case, except to draw the attention of police officers to section 106(2) (“The amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive”).

There remains the appeal against the order of the learned magistrate. It is fairly accepted by the Director that the words of section 114(1) (“... the court... may call upon any person bound by such recognisance to pay the penalty thereof...”) confers a discretion whether or not to order forfeiture of all or part of the amount of bail required. I think counsel for the appellant wished to argue that the learned magistrate should have taken account of the same things as the police officer ought to have done in first fixing the amount of bail.

Counsel argued that the forfeiture was too severe, first because this was not a serious offence, the greatest punishment being a fine of $20 or two months’ imprisonment. The mention of imprisonment would be enough to dispose of this argument. However (and how rightly) rare it may be for a man to be sent to prison for being drunk and disorderly, no accused person should be allowed to think it is worth trying to escape imprisonment or disqualification (where those are possible penalties) by staying away from court while risking no more than the maximum fine as a penalty for the attempt. Counsel further argued that the $30 forfeiture of bail imposed by the learned magistrate was out of proportion to the $10 fine. One answer to that is that the learned magistrate seems to have regarded himself as bound to fine the appellant (who had two previous similar convictions) in the same amount as Tagini (who had none). To that extent the appellant was a lucky man, and ought not to complain of the forfeiture. The other answer is that disobedience to an order to attend court; (which is not only bad in itself, but also wastes public time and money) may well be considered more serious than a minor drunken brawl, where as here no violence is used.

Counsel went on to argue that the learned magistrate should have taken account of the appellant’s means when he considered what sum to forfeit. Counsel relied (perhaps unnecessarily) on Nuapitu v.- R. (CRAC 13/83, unrep.) to show that any reason given for absence must be taken into consideration. He did not go on to suggest that the learned magistrate in this case should have heard evidence on the appellant’s lack of money. (On a casual reading of Nuapitu, that case might seem to support such an argument. However it should be noted that Daly CJ said, “The best course (my emphasis) ... is for the court to hear evidence on oath”. I think if Daly CJ had meant the only course, he would have said so, and it follows Nuapitu’s case should not be taken as laying down a general rule that evidence must be heard before bail is forfeited. It may sometimes be necessary, where the facts are complicated or seriously doubtful, but not otherwise). Here the learned magistrate was not asked to hear any evidence of the appellant’s means, and I do not think it would have helped if he had, where a sum of this kind is concerned. I think counsel was inclined to suggest that I might consider evidence myself, as Daly CJ did in Nuapitu. But that was done in exercise of the review jurisdiction, as the judgment makes clear. Section 115 CPC does provide that decisions on bail are subject to review as well as to appeal. However in my judgment this means no more than that they may be reviewed under the ordinary jurisdiction conferred by Section 50 Magistrates’ Courts Act on the Chief Justice or a judge appointed for the purpose by him. I have not been so appointed, and do not have that jurisdiction, even if I thought it right to use it here (which I do not).

So the question must be, did the learned magistrate take the right approach to the appellant’s lack of means on such information as was before him? Everyone knows that people here can count on their friends and relations to help them out when they are in trouble. As Daly CJ said in Inito v. R. [1983] SILR 177 at p. 178,

“In Solomon Islands this happens at all levels of society. In return for that support the appellant will owe a duty towards those who have contributed and that, in itself, is effective sanction against further misdemeanour”

So any court here can take account not only of a man’ own means, but of the help which his family may be presumed likely to give him. (The only word of caution that should be given is that it may be wise to look for direct evidence of means where it is a question of a larger sum of money, perhaps over $100 at today’ values). This means that the learned magistrate could rightly conclude that just as the appellant had relied on others to buy him beer in Auki, he could if so inclined have borrowed his truck fare (to go back to court there) from his family. As he failed to do so, it was by no means unjust to put him under the obligation of borrowing rather more to cover the forfeiture of his bail.

So there is no ground on which the appellant can justifiably complain of the way in which the learned magistrate exercise his discretion to forfeit all his bail, and this appeal must be dismissed. There are two more things worth mentioning. First, the remarks of the learned magistrate in giving judgment should be noted by everyone: “Anyone who absconds without good reason will have his bail estreated. Excuses of illness unsupported by medical evidence will not be accepted. Indeed any excuse which is not supported by some corroborative evidence will not be accepted”. This seems an entirely reasonable way for any court to deal with someone who has promised to appear before it and failed to do so. No doubt there is some room for leniency on islands where people have to depend on expensive canoes and unreliable ships, but where there is a road or a path a man can walk if necessary. If he is sick he must try and have a radio message sent to court from the nearest clinic, Often this may be impossible, in which case he must go to court or to his nearest police station as soon as possible with a note from a registered nurse to confirm he was sick before. I hope the press and radio will explain this to people.

Finally I should like to draw the attention of police officers to section 78 CPC. When bailing a defendant on a minor charge such as this, there is nothing wrong in giving him a Notice to Attend Court in Form 9. Then if the defendant wishes to plead guilty in writing and consent to trial in his absence no magistrate is likely to estreat his bail. That could save everyone time and money. (Of course if the defendant turns out to have relevant previous convictions, the magistrate can require his attendance under section 86(2) CPC).