Regina v Perfili [1992] SBHC 10; HC-CRC 030 of 1992 (6 October 1992)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 30 of 1992

REGINA

-v-

PERFILI

High Court of Solomon Islands
(Muria ACJ.)

Hearing: 5 October 1992
Ruling: 6 October 1992

F. Mwanesalua, DPP for Prosecution
J. Traczyk for the Accused

MURIA ACJ: The accused has been charged with a number of offences contrary to the Customs and Excise Act, Wild Birds Protection Act and Immigration Act.

The learned Director indicated that further charges will also be brought against the Accused. As to the charges already laid, the Accused has indicated that he will plead Not Guilty to them.

Apart from this Accused there are four others who are also facing charges in this case.

On 10 September 1992, the Magistrate's Court granted bail to the Accused as well as to the other co-Accused, Mr Peter James McDougall on a number of conditions. Among those conditions is that the Accused surrendered their passports so as not to leave the country until their trial. The Accused, Mario Perfili, now applies to the Court to vary that condition so that he be allowed to have his passport in order to be free to travel out of Solomon Islands. Peter James McDougall does not seek to vary that condition imposed upon him.

Mr Traczyk for the Applicant urged the court to consider his client's application based on a number of grounds.

First, Counsel argued that the charges are brought under the provisions of the Customs and Excise Act and that the penalty on each charge is a financial penalty of $200.00 fine or treble the value of the goods involved. Counsel suggested that in view of the security of $5,000.00 already lodged with the Court, the Applicant should satisfy the Court that the discretion of the Court should be exercised in his favour. As to the charge brought under the Immigration Act, Counsel suggested that the Applicant has a defence to that charge and that he would be contesting the interpretation of section 18(1)(1) of the Act. This, Counsel argued, should be taken into account as well in favour of the Applicant.

I accept that the nature of the charge, the punishment which conviction will entail and the nature of the evidence which may be challenged at the trial are all matters that the Court hearing such application as the present one should take into account. The punishment for the offences charged under the Customs and Excise Act are financial penalties. The punishment for the offence under section 18(1) of the Immigration Act, however, entails either a fine of $1,000.00 or three years imprisonment. I do bear those factors in mind.

Next Counsel argued that the Applicant has been in Solomon Islands since 31 July 1992 and no date has been set for trial. In view of the long form Preliminary Inquiry for the other two Co-Accused now set for 21 October 1992, there will be a further delay in having the Applicant's case heard. There would be a considerable number of witnesses to be called. The Director of Public Prosecutions has not yet signed the indictments against the Accused. All these would greatly affect the time in which the case would be heard. Because of such likelihood of a long delay in bringing the case to trial, the Applicant has suffered financial hardship in his business as well as in respect of his family obligations.

The question of delay in bringing an accused person to trial is a relevant factor to be taken into account in considering bail application. I feel it is particularly important that the liberty of an accused person must be borne in mind in order to minimise any delay in bringing an accused person to trial. The delay feared by the Applicant in this case is that the longer the delay in bringing the case to trial, the greater his business will suffer as well as his family. While I sympathise with the Applicant on the effect of the delay on him, I do not think he can gain any further sympathy based on the risk of his business going into financial hardship in this case. His coming into Solomon Islands was entirely his own decision, presumably, on a business venture. No doubt any delay in Solomon Islands either because of his arrest or due to natural disaster would no doubt put his business in Australia at risk because he would not be able to attend to it. I am sure the Applicant had taken that risk and cannot use it now to gain sympathy from the law. However as I have said earlier, I take into account the delay in bringing him to trial.

The learned Director had informed the Court that the case is coming to trial on 22 October 1992. I hope that it is an assurance that the case is proceeding so that delay will be minimised.

It was further contended for the Applicant that there has been a discrepancy between the Applicant and McDougall and the other Accused who are Solomon Islanders. It has been suggested that all Accused in the case should be subjected to the same conditions of bail. I do not think it is necessary for me to consider that submission as it does not appeal to me to be of much substance. It is not unusual that a foreigner charged with a criminal offence in a foreign country may very well find his passport or other travelling documents withheld to prevent him escaping criminal prosecution.

The Applicant called his wife in support of his application. Her evidence clearly shows that she has been affected by what happened to her husband. She said she had to go to the hospital because of the stress she was going through. She however stated that in the past, her husband also travelled out to other states in Australia on business. She however only felt this stress on this occasion. Naturally, she feel that she is now under a lot of stress and anxiety, particularly, as her husband is facing a criminal prosecution in a foreign country. She has 4 children to look after. However, her evidence does not support her husband's application. In fact, it is to the contrary. Her husband is lodging at the Kitano Mendana Hotel while waiting for his trial. She is able to travel to and from Australia with their little child and lodge with her husband at the Kitano Mendana Hotel. She complained about household bills not being settled in Australia. She said she has always been healthy except for the stress she is now going through. Putting all her evidence together, I conclude that all she wants is her husband to go back to Australia.

Mr Traczyk further urged that the presumption of innocence weighs in favour of the Applicant. The presumption of innocence is not an irrebuttable presumption. This is obvious when one reads section 10(2)(a) and (11)(a) of the Constitution. The provisions state:

"10. (2) Every person who is charged with a criminal offence-

(a) shall be presumed innocent until he is proved or has pleaded guilty;

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(11) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of -

(a) subsection (2)(a) of this section to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;"

The common law presumption of innocence is embedded under the Constitution of Solomon Islands and it is so done not without qualification as we have just seen. Thus prima facie, an accused person is entitled to bail. However the law also allows conditions to be put on the bail in order to secure the attendance of the accused at his trial. Once conditions are imposed on a bail granted, it is for the accused to show that those conditions do not apply to him and that he will attend at his trial.

In this sort of application, as I have said what the Court requires to be satisfied with is the question of ensuring that the Accused attends his trial. If the Applicant's bail condition is varied to allow his freedom to leave the country, is he likely to return to attend his trial? The object of imposing conditions on a bail is to secure the attendance of the accused at the trial. The onus is on the Accused to satisfy the Court that he will attend at the trial. No assurance has been given by the Applicant that if he is allowed to travel out of Solomon Islands he would return to attend his trial.

Apart from the other considerations raised by Counsel for the Court to take into account in exercising its discretion, the paramount consideration in such a case as the present where an accused is from a different country, is the question of securing the attendance of the accused at the trial. If the Court is not satisfied that the Accused will attend at the trial, then even if the other considerations are satisfied, the Court will not grant unconditional bail.

In the present application I consider all that had been ably said on behalf of the Applicant. But at the end of the day I have not been persuaded that the restriction complained of by the Applicant should be removed. The Applicant has failed to satisfy the Court that if he is allowed to leave Solomon Islands he would return to attend at his trial.

The application is refused.

(G.J.B. Muria)
ACTING CHIEF JUSTICE