Jino v Regina [1999] SBHC 51; HC-CAC 172 of 1999 (12 May 1999)

class="MsoNormal" aal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0"> HIGH COURT OF SOLOMON ISLANDS

HC-CAC No. 172 of 1999

JOHN MAE Jamp; JOHN GWALI TA'ARI

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lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 0; margin-bottom: 0"> REGINA

HIGH COURT OF SOLOMON ISLANDS
PALMER J.
CRIMINAL APPEAL CASE NASE NO: 172 OF 1999

HEARING: 12 MAY 1999
JUDGMENT: 12 MAY 1999

A. NORI FOR THE APPLICANTS
I. FASCIA FOR THE CROWN

PALMER J.: This is an appeal by the two applicants against the refusal by the learned Magistrate to grant bail pending hearing of their trial in the Magistrates Court. Both applicants had been charged with two offences each, of being in possession of firearms without holding a firearm licence in force at the said time, and for going armed in public without lawful occasion, contrary to section 5(2)(a) of the Firearms and Ammunition Act and section 93 of the Penal Code respectively.

The two applicants had been held in cussince arrest on 20th April pril 1999, pending inter alia, completion of investigations by the Police. They were brought to the Magistrates Court this morning for bail application by learned Counsel Mr Nori. Both applicants had maintained not guilty pleas throughout. The Police Prosecutor informed the court that investigations had been completed and that he did not object to bail provided there was a cash deposit. Mr Nori countered however, it was inappropriate for a cash deposit to be required in the circumstances of this case. He asked instead that bail be granted in their own recognisance without sureties.

The learned Magistrate unfortunatelyined to grant bail on groungrounds of what he termed as the community interest. The learned Magistrate felt release of the two applicants might escalate the current ethnic tension facing the nation.

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Unfortunately this matter was never raised by either party during ting the brief hearing and came as a surprise. Bail is a right protected by law (section 106 of the Criminal Procedure Code). The granting of bail by the court however is discretionary. That means it is not to be unreasonably withheld. With respect the ground relied on by the learned Magistrate is irrelevant and unreasonable in the peculiar circumstances of this case where bail had not been objected to by the Police Prosecutor and where no mention was made of the relevance of the ethnic tension to that particular application for bail. The danger the learned Magistrate must avoid falling into is in giving the appearance of turning prosecutor as well as being the Judge in the case. If he thought concerns in the community interest and the current ethnic tension might have some relevance to his discretion to grant bail or not, then he should first give opportunity or raise the matter with the Prosecutor and learned Counsel to comment on before making any final decision. He did not do that.

I am satisfied the order of the Maates Court be set aside ande and the two applicants be admitted to bail in their own recognisance of $500-00 each to appear at the Central Magistrates Court on a date and time to be fixed for their trial. The applicants are to be released from custody on their entering into the said recognisance. This shall be deemed a sufficient order of release to the Officer in Charge of the prison at Rove to release the two applicants once the recognisance shall have been entered into.

THE COURT