Kelly v R [1991] SBHC 3; HC-CRC 044 of 1990 (15 January 1991)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 44 of 1990

KELLY AND OTHERS

-v-

R.

High Court of Solomon Islands
(Ward C.J.)

Hearing: 15 January 1991
Ruling: 15 January 1991

The Applicants in person
J. Wasiraro for the Respondent

WARD CJ: These are applications to appeal against conviction and sentence by the first applicant and sentence only by the remaining applicants.

The sentences passed were all substantial and related to a number of offences which were part of a continuous incident of terrorism in the Shortland Islands.

The first applicant applies for leave to appeal against conviction on the basis, if I understand just what he is asking, that the public solicitor who represented him either failed to take full instructions or to advise he could give evidence or both.

He tells this court that he was a section commander in the Bougainville Revolutionary Army and was acting as such on the dates involved here. He has told me nothing that could amount to a defence to the charges of which he was convicted.

The only ground remaining relates to the manner in which the public solicitor conducted the case in the Magistrate's Court. The appellate courts are reluctant to interfere with decisions of counsel as to the manner in which he conducts a defence in court and will only do so where there is clear cause to suggest impropriety or incompetence. I see nothing to support that here.

Leave to appeal against conviction refused.

The remaining applicant's seek leave to appeal against sentence on the grounds, common to them all, that it was excessive and the court failed to consider the fact alleged by them now but not, I believe, previously that they were forced to do this act and were under superior orders.

It is clear on the authority that a defence of duress is not open to a person who voluntarily joins an organisation, the purpose of which might cause him to commit such crimes as those with which he is charged. This was suggested in Lyuch and has been followed in Fitzpatrick.

I accept that principle. However, such circumstances may amount to mitigation. These were lengthy sentences for crimes of a type that have not come before the courts here previously. In those circumstances I give leave to appeal against sentence to the second to seventh applicants inclusive.

That point is not raised by the first applicant for obvious reasons but he does claim the sentence is excessive. I would not normally give leave on such grounds but I feel that, if the Court of Appeal should decide to interfere with these sentences at all, they should be able to consider his at the same time.

Leave to appeal against conviction by the first applicant refused.

Leave to appeal against sentences by all applicants granted.

The application for leave to be taken as grounds of appeal with leave for further grounds to be filed within 30 days.

I shall direct that they be represented by a member of the Public Solicitor's Office and the lawyer allocated should be one who has not been involved in the case so far.

(F.G.R. Ward)
CHIEF JUSTICE