Kakaluae v Reginam [2003] SBHC 145; HCSI-CRAC 241 of 2003 (1 October 2003)

CRAC No 241 of 2003

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No 241 of 2003

LESLIE ASHLEY KAKALUAE

-v-

REGINAM

High Court of Solomon Islands
(Palmer J.)
Criminal Appeal Case Number 241 of 2003

Date of Hearing: 29th, 30th September 2003
Date of Judgment: 1st October 2003

A & A Legal Services for the Appellant
R.B. Talasasa for the Respondent

PALMER J.: The Appellant, Leslie Ashley Kakaluae (herein after referred to as “the Defendant”) is a senior officer of the rank of Police Sergeant of the STAR Division in the Royal Solomon Islands Police Force (“RSIPF”). He was arrested it seems on or about 30th November 2001 on a number of firearms related offences and brought before the Magistrate Court for remand but was released on bail by the presiding Magistrate Kouhota on a surety of $500.00. He was arraigned before the Magistrates Court in respect of Criminal Case Number 89 of 2001 (details of which I take judicial notice of) on or about 12th March 2002 on 8 separate c charges, brief details as follows:

1. Discharging a firearm at Rove on or about 26th November 2001.

2. Discharging a firearm at Point Cruz on or about 28th November 2001.

3. Grievous harm on or about 28th November 2001 (this offence was directly related to the discharge of the firearm in count 2).

4. Discharging firearm at Mbokonavera Heights on or about 28th November 2001.

5. Malicious damage to a vehicle registration number A8652 on or about 28th November 2001 (directly related to count 4 above).

6. Malicious damage to a dwelling house on or about 28th November 2001 (directly related to count 4 above).

5. In possession of firearm without firearm licence on or about 29th November 2001.

6. In possession of 129 live rounds of 9 mm calibre without valid firearm licence on or about 29th November 2001.

The Defendant pleaded not guilty to all the charges.

On or about 19th March 2002 the presiding Magistrate Chetwynd (Acting Chief Magistrate) intimated to the parties that he would be prepared to review the question of bail in view of the seriousness of the charges that the Defendant had been charged with. The learned Prosecutor Mr. Talasasa however declined to apply for remand on the grounds that he was satisfied there was no real possibility of the Defendant absconding or not turning up in court for his hearing. Bail terms therefore were continued throughout for the hearing of those charges. The progress of the trial before the Magistrate’s Court however was very slow and at times frustrating it seems for the presiding Magistrate. Police Officers that had been summoned to appear as witnesses were not tuning up; it seems deliberately. By 1st November 2002 evidence had been heard in respect of the charges from 2 to 6 but not the first or the last two charges. The evidence in respect of those matters was supposed to come from police officers. From extensive submissions by the learned Prosecutor Mr. Talasasa, it was obvious there was fear of reprisals from those police officers. Mr. Talasasa had indicated to the court that the Police Field Force was divided about the arrest of this Defendant based on their personal grudges and dissatisfactions with other more senior officers who also appear to have committed similar offences but had not been dealt with, never mind the fact that they had nothing to do with the fact that criminal offences had been committed by this Defendant which needed to be dealt with. There were numerous adjournments granted by the presiding Magistrate in an attempt to get the witnesses from the Police to attend but to no avail, even to the extent of having warrants of arrest issued it seems. This only goes to show how low down the ladder, law enforcement on certain matters had fallen and was ineffective. We thank God that is no longer the case now with the arrival of the Regional Assistance Mission to Solomon Islands.

With its patience tried and interests of justice keenly balanced, Prosecution closed its case on 1st November 2002. The presiding Magistrate ruled that there was prima facie case for trial in respect of counts 2, 3, 4, 5 and 6 but not in respect of counts 1, 7 and 8, giving option to the Prosecution in view of the predicament it had found itself in to have those charges discharged but which could later be re-instated when the Police Force was purged and cleaned. The presiding Magistrate then adjourned to a date to be fixed by arrangement with Counsels, Mr. Talasasa for the Prosecution and Mr. Charles Ashley for the Defendant, for continuation of the case. Unfortunately nothing further appears to have taken place in respect of the further progress of that trial. Mr. Upwe in his submissions seeks to attach blame to the Magistrate’s Court for failing to list the matter for Defence witnesses to be called and final addresses to be made. However this must be qualified and balanced with the fact that as much as the presiding Magistrate was responsible for the progress of that case, both Defence and Prosecuting Counsel were as much responsible in ensuring that the matter was not left to lie forgotten away in the court’s registry pending tray. The learned Acting Chief Magistrate did make clear in his closing statements of 1st November 2002 that he wished to hear from Counsels about the possible dates for continuation of the trial. I quote:

“What remains to be done now is for the Court to fix a date for the Deence witnesses and final addresses to the Court. I will be guided by Counsel on that or those dates because I am mindful of their commitments in other Courts.”

If as pointed out by Mr. Upwe that Mr. Ashley was leaving for overseas study leave, then he had as much responsibility to follow up with the court and Prosecution to have the matter listed for continuation of trial before he left. There is no evidence before me that such thing was ever done.

It is a fact Mr. Ashley has gone overseas for study, Mr. Talasasa confirms saying good bye to his colleague at the Henderson/Honiara International Air port. That is however no bar to the matter being re-listed for continuation of trial. Attempts must be made now to have that case re-listed, and either Mr. Ashley be required to appear in court for the continuation of the trial, or another solicitor in his firm instructed to take up the case for the Defendant. Any further delays in the continuation of trial in that case must be avoided.

It is not clear what happened thereafter regarding bail of this Defendant. There is no record as to what the presiding Magistrate did with the Defendant. One can only assume that the Defendant’s bail of a surety of $500.00 was continued indefinitely until such a time as the new date for hearing is fixed.

Subsequently, the Defendant was re-arrested on fresh charges on or about 27th August 2003 and brought to court. Details of those fresh charges read as follows:

1. Common assault alleged to have been committed on or about 21st March 2003.

2. Common assault alleged to have been committed on or about 30th April 2003.

3. Using abusive words on or about 26th August 2003.

4. Assault causing actual bodily harm on or about 26th July 2002.

5. Common assault on or about 18th October 2002.

6. Malicious damage on or about 18th October 2002.

On the said date, no separate or fresh application was made for remand of the Defendant in respect of those fresh charges by the Police Prosecutor. Also no consideration of the question whether bail should be withdrawn or not in respect of Criminal Case 689 of 2001 was made in view of the subsequent offences committed whilst the Defendant was on bail. The presiding Magistrate Faukona (Deputy Chief Magistrate) simply extended bail for 8th September 2003 for further mention of those matters. On the said date the matter came before Principal Magistrate Makin. Defendant was arraigned and entered pleas of not guilty on all charges. Bail was again extended for seven days to 15th September 2003 for a pre-trial conference which included determining which statement of facts to be agreed, which statements of witnesses were disputed or not, length of hearing to be reviewed etc. The matter was further adjourned to 18th September 2003 for further mention and bail extended.

On the said date, it was determined (judicial notice is taken of the record of proceedings) that Prosecution and Defence had more or less agreed on facts, that the matter was ready for final pleas to be determined and whether trial needed to take place, and if so, length of trial. The matter was further adjourned to 22nd September 2003, bail again extended.

Sometime between 18th September 2003 and 22nd September 2003, the Acting Chief Magistrate became aware of other offences having been committed by the Defendant whilst on bail (note the Acting Chief Magistrate was the presiding Magistrate in respect of CRC 689/2001) and inserted a note in the Magistrate’s Court file no. CRC 603/03 for the attention of the presiding Magistrate in that case. The file note reads:

“This Defendant is presently bailed for serious offences (use of firearms, assault and criminal damage). The case has not been completed because Police Officers have consistently refused to come to court to give evidence. On the face of it the Defendant has committed a number of serious offences (similar in nature) whilst on bail.”

On said date (22nd September 2003) Counsel Upwe for the Defendant indicated that there was a possibility of guilty pleas being entered on counts 2, 4 and 6 if counts 1,3 and 5 were withdrawn. The Prosecution then indicated that it needed time to take further instructions on this matter. At this point of time, the learned Principal Magistrate informed parties of the note of the Acting Chief Magistrate written into the court file and asked if the contents were agreed to. This was generally agreed by them. The learned Magistrate then informed parties that he was considering revoking bail and gave opportunity for comments on bail to be made. Following their submissions, the learned Magistrate made the order for remand as follows:

“On basis of Chief Magistrates note that is supported by prosecution and not available before. Def remanded in custody as this is offence committed on bail. Order remand 14 days.”

It is that order of the 22nd of September which the Defendant now appeals against.

The petition of appeal was filed on 23rd September 2003 pursuant to section 283 of the Criminal Procedure Code [cap. 7] (hereinafter referred to as “the CPC”). Section 285(1) requires the appeal to be in the form of a petition and to be presented to the Magistrate’s Court from whom the decision of which the appeal is lodged. Section 287 in turn requires the Magistrate, upon receipt of the petition of appeal, to forthwith forward the petition of appeal together with the record of proceedings to the Registrar of the High Court. I have highlighted the requirements of section 287 as these have not been complied with in this instance and hence resulting in unnecessary delay in the hearing of this appeal. The matter came before me at 9.30 a.m. on 29th September 2003 but after proceeding for one hour it had to be adjourned at 10.30 a.m. to 3.00 p.m. in the afternoon to allow for the record of proceedings to be produced. Unfortunately despite extensive search being conducted at the Central Magistrate’s Court Office that morning, the file could not be located, necessitating further adjournment to the following day, 30th September 2003 at 2.00 p.m. for continuation of the hearing of the appeal. It was drawn to the attention of this court that the file containing the record of proceedings may have gone missing somehow. Magistrates need to be aware of this requirement so that such unnecessary delays are avoided. Had the record of proceedings been prepared as soon as the petition was received by the Magistrate’s Court, the possibility of the file disappearing may have been minimized or avoided.

Further, it is important to keep in mind the provisions of section 289 of the CPC which requires the Registrar of High Court to do the following relevant matters on receipt of the petition of appeal and record of proceedings:

(a) enter the appeal for hearing;

(b) serve a notice of hearing on the parties;

(c) supply the respondent with a copy of the petition and a copy of the judgment or order appealed against;

(d) except when the appeal is against sentence only, supply the respondent with a copy of the proceedings;

(e) [not relevant for purposes of this hearing]

Apart from requirements (a) and (b) above, requirements (c) and (d) were not complied with. Mr. Talasasa’s complaint regarding a failure by the Registrar of High to comply with the above requirements is justifiable. The Registrar of High Court is reminded to comply with the above requirements when listing an appeal for hearing and effecting service on the parties

By the time the appeal came before me for hearing at 2.00 p.m. on 30th September 2003, the missing file had been located and copies of the record of proceedings distributed to parties. Affidavits by Inspector Mathew Taro, the Police Prosecutor at the hearing and that of Mr. Upwe had also been filed.

There are basically three grounds of appeal:

1. The learned Principal Magistrate erred in remanding the appellant in custody, depriving the appellants liberty when the appellant did not breach any specific bail conditions imposed on him in CRC 639/2001.

2. The learned Principal Magistrate erred in taking into account irrelevant and unreasonable ground to remand the appellant in custody.

3. The learned Principal Magistrate erred in not considering the fact that the Prosecution failed to prosecute the alleged serious offences within a reasonable time and when the new offences were committed, they were used as a ground for remand.

The requirements for bail are enshrined in our Constitution section 5(3) and given effect to in section 106 of the CPC. Whilst any arrested or detained person has right to apply for bail, that right is subject to the discretion of the court to be exercised judicially. The primary consideration being, that of securing the attendance of the Defendant at trial (see R. v. Rose^[1]). It is important to appreciate that when an accused person is granted bail as has happened in CRC 689/2001, the effect is not to set the accused free, but to release him from the custody of the law and to entrust him to the custody of his surety (in this case Mr. Charles Ashley - his brother) who is bound to produce him to answer on his trial at a specified time and place (see Halsbury’s Laws of England)^[2] The three main tests of probability of the accused appearing at his trial have been summarized succinctly in R. v. Lythgoe^[3] by Mansfield S.P.J as being (a) the nature of the offence charged; (b) the probability of a conviction; (c) the severity of the punishment which may be imposed (see also page 71 of Archbold, Criminal Pleading, Evidence & Practice^[4] Karawasi Taisia v. Director of Public Prosecutions^[5] and Redley Clement Sisifiu v. Reginam^[6] in which the same grounds had also been referred to).

The first ground of appeal stipulates that an error of law was committed by the Principal Magistrate in remanding the Defendant when there was no breach of any specific bail conditions which might have been imposed on the Defendant in CRC 689/2001. This appeal ground assumes that because no bail condition had been breached that the Defendant should not have been remanded in custody. Unfortunately, that is only one part of the picture. Whether a bail condition had been breached or not does not alter the judicial responsibility that is placed by the law upon the shoulders of the Principal Magistrate to consider whether bail should be granted on the 22nd September 2003 or not! The bail which had been extended on the 18th September was discharged on the 22nd of September. On the 22nd September however, it was brought to the attention of the Principal Magistrate for the first time that the charges before him were in respect of fresh offences committed by the Defendant whilst on bail! On having satisfied himself that that was the case, the learned Magistrate then informed the parties that he was considering revoking bail and invited submissions to be made. That was a perfectly legitimate act by him. I fail to find any error of law in his actions. After hearing submissions of the parties, in particular from the Counsel of the Defendant, the learned Magistrate decided to revoke bail and to remand the Defendant. The most obvious influential factor on the exercise of his discretion to revoke bail and commit the Defendant to custody was the commission of further similar offences of violence. Now, there is a case authority for the proposition that bail ought not to be given where it is likely that an offence will be repeated. In R. v. Phillips^[7] two brothers were refused bail by the Court of Criminal Appeal on the grounds that a number of offences of housebreaking for which they had been previously charged and released on bail were committed whilst they were on bail.

“The Court feels very strongly that the applicant ought not to have been released on bail. In cases of felony, bail is discretionary, and the matters which ought to be taken into consideration include the nature of the accusation, the nature of the evidence in support of the accusation, and the severity of the punishment which conviction will entail. Some crimes are not at all likely to be repeated pending trial and in those cases there may be no objection to bail; but some are, and housebreaking particularly is a crime which will very probably be repeated if a prisoner is released on bail, especially in the case of a man who has a record of house breaking such as the applicant had. It is an offence which can be committed with a considerable measure of safety to the person committing it. There were three charges against the applicant. With regard to one there was no defence and in the case of another he was actually arrested in the act. Yet in spite of all his previous convictions the applicant was given bail, not once but twice, first pending the hearing before the magistrates and again on committal for trial. To turn such a man loose on society until he had received his punishment for an undoubted offence, an offence which was not in dispute, was in the view of the Court, a very inadvisable step.” (per Atkinson J. at page 48)

It is clear on the materials before this court (which I take judicial notice of) that this particular Defendant has a serious problem with regards to violence. All of the offences he was charged with in CRC 689/2001 directly related to violence. The offences committed during bail and for which he had been re-arrested and detained were again directly related to his violent behaviour. This case in my respectful view falls squarely within the latter part of the statements of Atkinson J (ibid.) in which he said:

“Some crimes are not likely to be repeated pending trial and in those cases there may be no objection to bail: but some are, and housebreaking (I would insert offences of violence or violence related) particularly is a crime which will probably be repeated if a prisoner (the Defendant) is released on bail, especially in the case of a man who has a record for housebreaking (violence) such as the applicant had.” (Emphasis added)

I couldn’t agree more with his Lordship’s comments that “To turn such a man loose on society until he had received his punishment for an undoubted offence, an offence which was not in dispute, was, in the view of the Court, a very inadvisable step.”

I fail to find any error under ground 1 of the appeal.

Ground 2 of the appeal alleges that the learned Principal Magistrate took into account irrelevant and unreasonable ground to remand the defendant. By that I understood Mr. Upwe’s submissions to refer to the note of the Acting Chief Magistrate inserted in CRC 603/2003 for the attention of the Principal Magistrate. Unfortunately, I fail to see how this could be regarded as an irrelevant and unreasonable ground. It was a fact which the Principal Magistrate was entitled to take judicial note of in any event, and which he did after it was brought to his attention. Not only that, but he ensured that that fact was brought to the attention of the parties and for submissions to be made. There was nothing wrong with that course of action, bearing in mind that whether the Prosecution did make any application for remand in that matter or not was immaterial, as the Principal Magistrate was judicially required on that occasion to consider whether bail should be granted or not.

Apart from that, there were obviously other relevant factors which the Principal Magistrate had before him. These were the nature of the accusation, the nature of the evidence in support of the accusation, and the severity of the punishment which conviction will entail. The fresh offences for which the Defendant had been charged with were quite serious offences of violence, three counts of common assault, one count of causing actual bodily harm, and one count of malicious damage. These fresh offences were similar to the previous offences he had been charged with. Further it was common knowledge that these were committed not by a common criminal but by a senior officer of the RSIPF who had sworn to uphold the rule of law in this nation.

As to the issue regarding the nature of the evidence in support of the accusation, there were clear indications that in three of the offences charged guilty pleas would be entered.

On the question of severity of punishment which a conviction will entail, the Defendant most likely will be given a custodial sentence.

When these factors are also taken into account, there was all the more reason and justification for an order for remand to be imposed by the Principal Magistrate on that occasion.

Ground 3 of the Notice of Appeal alleges that the Principal Magistrate erred in not considering the delay in the prosecution of the alleged serious offences in CRC 689/2001 within a reasonable time as a ground for withholding bail. Learned Counsel Upwe relies on section 10 of the Constitution and the case of Kimisi v. Director of Public Prosecution^[8] in support of his submissions that there has been unreasonable delay. The delay complained of was in respect of the failure to prosecute that case with expedition.

Unfortunately, the comparison sought to be made with the case of Kimisi v. Director of Public Prosecutions (ibid) is inappropriate. No prosecution was commenced in that case until some 27 months after he had been dismissed for embezzlement and the matter reported to Police as a criminal case. Investigations in respect of the offences committed in CRC 689/2001 commenced almost immediately and within three months the Defendant had been arrested and charged. First appearance at the court was within five months. I have listened carefully to submissions of Mr. Talasasa regarding progress of the trial in that case as he was the prosecuting counsel. I am not satisfied there has been unreasonable delay in the way the case had been prosecuted. The only delays have been as a result of the lack of attendance by police officers who had been summoned to appear at the trial. Despite warrants of arrest being issued, these too have not been enforced. Out of sheer frustration but also out of a sense of duty to the course of progress and justice in the case, prosecution closed its case on or about 18th October 2002. The matter was last adjourned on 1st November 2002 for Defence to present its case and for final addresses. The matter has not come back to court for continuation of trial. I have already commented on this delay in this judgment and do not need to repeat what I have said.

Mr. Upwe alleges that this delay factor was not considered by the Principal Magistrate and thereby resulted in an erroneous decision being made with regards to the imposition of a remand order. Had the Principal Magistrate taken into account that delay factor, he ought not to have imposed a remand order on the Defendant. Whilst it is conceded that there had been some delay in the progress of the first case, I am not satisfied that the fault can be placed squarely with the courts. I have pointed out that the parties were as much responsible for ensuring that the matter was dealt with expeditiously. Little reliance and use therefore can be made of the fact of delay of completion of trial in the first case as a basis for any argument to grant bail on 22nd September 2003. The fact of delay does not justify the commission of the latter offences by the Defendant. The fact he was on bail for serious offences which pertained to violent offending should have given him all the more reason to be cautious and responsible in his conduct and behaviour in public.

The refusal of bail by the Principal Magistrate on 22nd September 2003 was a judicial exercise he was obliged to perform after hearing submissions from the parties. Having done that, I am unable to find any error of law committed by the learned Magistrate which would warrant the intervention of this court in respect of that order.

Ground 3 of the appeal must also be dismissed.

The appeal accordingly is dismissed.

The Court.

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^[1] 67 L.J.Q.B 289
^[2] 93rd edition) volume 10 para. 677
^[3] [1950] St R. Qd.5
^[4] 36th Edition by Butler and Garsia.
^[5] Unreported Criminal Case No. 266 of 2001 per Kabui J. at pages 2-3 by Kabui J at page 3
^[6] CRC 128 of 2003, 12th August 2003 per Palmer J
^[7] 32 Cr. App. R. 47
^[8] (1980) SILR 82