Maui v Regina [2002] SBHC 120; HC-CRC 279 of 2002 (20 November 2002)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 279 of 2002

JIMMY MAUI

-V-

REGINA

High Court of Solomon Islands
(Muria, CJ)

Criminal Case No. 279 of 2002

Date of Hearing: Wednesday 20^th November 2002
Date of Judgment: Wednesday 20^th November 2002

F. Mwanesalua, DPP, for the Prosecutions
M. Ipo for the Accused

MURIA CJ: The applicant, having been refused bailed by the Magistrate Court, now comes to this Court seeking bail. In addition the applicant also seeks, in effect, an order that the Chief Magistrate be disqualified from hearing the case. Both these two issues were raised before the learned Chief Magistrate who heard the case against the accused in the Magistrate Court. The learned Chief Magistrate refused bail and also dismissed the objection to him dealing with the case.

The accused has been charged with three offences before the Magistrates Court, namely; grievous bodily harm contrary to section 226, Penal Code, wilful destruction to property contrary to section 326 (1) of Penal Code and simple larceny contrary to section 261 (1) of the Penal Code. The grievous bodily harm charge carries a maximum sentence of 14 years, wilful destruction to property, 2 years and simple larceny, 5 years. There can be no doubt that the offence of grievous bodily harm is a serious offence, and in this case the fact that the offence of grievous bodily harm and the other two offences arose out of the same set of circumstances as well as upon the same victim, make the case against the accused a very serious one indeed.

In his decision refusing bail, the learned Chief Magistrate took into account the seriousness of the offences, especially that of grievous bodily harm and the nature of the allegations raised against the accused and the likely sentence facing the accused, if convicted. I note earlier on, the Magistrates Court remanded the accused in custody on the ground that he might interfere with prosecution witnesses and that he posed further threats to the victim. In this regard, I bear in mind what the learned DPP told the Court, that is, the accused and victim had been having a de facto relationship prior to the incident. The letter written by the accused to the victim confirms this. The victim herself had written to the police outlining her fears of threats of violence by the accused should he be allowed bail pending trial. These are matters relevant in considering whether or not to grant bail and the Court cannot ignore them.

The principles of law applicable in a bail application are well settled in this jurisdiction and elsewhere. The presumption of a right to bail in favour of the accused is constitutionally recognized in this country, as can be seen in section 5 (3) of the Constitution. This is embedding the common law principle that the accused is innocent until proven guilty. The presumption of a right to bail is, however, rebuttable where it may be necessary for the Court to take such measures as are necessary to ensure that the accused appears for trial: Regina –v- Perfili.^[1] Upon perusal of the record, the learned Chief Magistrate had clearly taken these principles into account when he considered the question of bail on 4^th November 2002. Equally the learned Chief Magistrate took into account the seriousness of the offences and the allegations contained in the charges, the possibility of interference with prosecution witnesses, the possibility of repetition of threats and violence upon the victim and the severity of the sentences, if the accused is convicted. These are factors bearing upon the exercise of the Court’s discretion in determining whether bail should or should not be granted. The learned Chief Magistrate considered them and I am not persuaded in the slightest that the learned Chief Magistrate did not take them into consideration.

The onus is on the prosecutions to show that bail ought not to be granted. On the other hand the accused must also point to something tangible or actual or some factor to which he can show that his entitlement to bail is supported or is with basis. In this case I am satisfied that prosecution has established that bail ought not to be granted. As such I see no merit in this point of appeal raised by the accused in his notice of appeal. I dismissed ground one of the appeal.

The second ground seeks the disqualification of the Chief Magistrate in dealing with the accused’s case. I have heard the argument advanced by counsel for the accused in support of his objection to the learned Chief Magistrate dealing with the case. The test as expounded in the cases referred to by counsel is well received in this jurisdiction. That test, says counsel is “real likelihood of bias or reasonable apprehension of bias.” I would prefer, however, the test set out in Kamai –v- Aldo ^[2] of “a reasonable bystander”. Applying that test to the present case, one may ask: would a reasonable bystander conclude, having known the victim socially or professionally, and that she is of British national, that there is a real likelihood of bias or a reasonable apprehension of bias on the part of the learned Chief Magistrate who is a British national himself? I cannot accept that any right minded member of the public would feel that there is a real likelihood of bias on the part of the learned Chief Magistrate any more than they would, if a magistrate was trying a man whom he knew and recognised as the person he had previously convicted and sentenced on another charged: Ngina –v- Reginam. ^[3] I would not, for a moment think that a professionally qualified judicial officer would demonstrate “a real likelihood of bias” in the circumstances now relied on by the accused in the present case, whether such a judicial officer is a British national trying the case where the accused or the victim is a British, or a Solomon Islands judicial officer trying the case where the accused or victim is a Solomon Islander.

The argument that the learned Chief Magistrate should disqualify himself from trying the accused in this case because he knew the victim and that he and victim are both British national cannot be sustained. I reject this ground as well.

The result is that, the appeal by the applicant is dismissed. The order of the Magistrate Court refusing bail is confirmed.

Sir John Muria
CHIEF JUSTICE

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^[1] R –v- Perfili (6 October 1992) High Court, Crim. Cas. No. 30/1992.
^[2] Kamai –v- Aldo (23 November 1982) High Court, Land Appeal Case No. 17/ 1982.
^[3] Ngina –v- Reginam [1987] SILR 35, 39 Ward CJ.