Mae v Regina [2003] SBHC 76; HC-CRAC 279 of 2003 (5 November 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case Number 279 of 2003

CHRIS MAE

–V-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

Date of Hearing: 5^th November 2003
Date of Ruling: 5^th November 2003

K. Averre for the Appellant
C. Ryan for the Respondent

PALMER J.: The Appellant, Chris Mae appeals against the order of the learned Deputy Chief Magistrate dated 29^th October 2003 refusing bail to be granted to him and remanding him for a further period of nine days. There were primarily two grounds of appeal relied on:

(i) that the learned Magistrate could not have been satisfied on a balance of probabilities through prosecutions representations of difficulties should the Appellant be released on bail; and

(ii) that the learned Magistrate took into account matters which he should not have taken into account and failing to take into account matters which he should have taken into account.

The Appellant had been arrested on a charge of robbery contrary to section 293 of the Penal Code (cap. 26). He made his first appearance unrepresented before the Magistrates’ Court on 15^th October 2003 and was remanded for 14 days to 29^th October 2003. When he appeared again on that date, he was able to secure legal representation by the Public Solicitor Ken Averre. A further application for remand was made by the Police Prosecutor, Constable Karasio Boto. Mr. Averre objected and made submissions on behalf of his client for bail to be granted. Four grounds were relied on by the Prosecutor to justify the application for remand:

(i) that the offence which the Appellant had been charged with was a serious one punishable by life imprisonment;

(ii) that the co-offenders were still at large and investigations continuing,

(iii) further investigations were yet to be carried out in Malaita as well as in Honiara, and

(iv) that there was a fear that the Appellant may abscond.

(see affidavit of Karasio Boto filed 4^th November 2003 on behalf of the respondent).

The transcripts of the record of proceedings of the learned Magistrate however contained a slightly different version as follows:

(i) If suspect released he might interfere with prosecution witnesses;

(ii) This is a robbery case which carry a maximum punishment of life imprisonment;

(iii) If accused bailed he might abscond; and

(iv) Some of the accused’s associate are yet to be arrested.

In his ruling delivered on the same date, the learned Magistrate took into account the fact that there were other co-accuseds yet to be arrested and that there was a real possibility of interference with the course of justice. He refused bail and ordered the Appellant to be remanded in custody for nine days.

In his submissions before this Court learned Counsel Ryan for the Prosecution correctly pointed out that the onus lies with the Defence to demonstrate on the face of the record that an error of law had been committed by the learned Magistrate or that a substantial miscarriage of justice had occurred, which would warrant intervention by this court. Learned Counsel submits that the Appellant had failed to discharge that onus and that accordingly his appeal should be dismissed.

The Appellant has a right to apply for bail which is protected under our laws [see section 5(3) of our Constitution and section 106(1) of the Criminal Procedure Code (“CPC”)]. That right however is subject to the discretion of the courts to be exercised judicially. The primary consideration of-course being that of securing the attendance of the Defendant at trial (see R. V. Rose^[1]).

To assist the courts in the exercise of their discretion, the following considerations should be taken into account (which appear to be relevant) for purposes of determining whether bail should be granted or not (see also page 71 of Archbold, Criminal Pleading, Evidence & Practice^[2], Karawasi Taisia v. Director of Public Prosecutions^[3] and Redley Clement Sisifiu v. Reginam^[4], Leslie Ashley Kakaluae v. Reginam^[5]):

(a) The nature of seriousness of the offence. The more serious an offence, the more likely is the temptation to abscond in that if convicted the defendant is likely to receive a long prison sentence. The incentive to abscond and avoid trial therefore is stronger in such instances.

(b) The character, antecedents and community ties of the defendant. The character and antecedents of the defendant provide useful guide as to whether bail should be granted or not. For instance, has the defendant abused bail before? Does he have previous convictions of a serious nature? [eg. see the case of Leslie Ashley Kakaluae v. Reginam (ibid)]. Does he have a fixed abode?

(c) The probability of a conviction or the strength of the evidence against the defendant. Where the state of the evidence against the defendant is available this should be considered in conjunction with the seriousness and nature of the offence. In this instance, of-course this was not available.

(d) Any other matters which may be relevant. These include possible interferences with prosecution witnesses, possible actions in perverting the course of justice and where there is a real likelihood of the offence being repeated or some other serious offence being committed whilst on bail.

When the matter came before the learned Magistrate, four relevant grounds for remand were put before him as recorded in the transcripts of his records:

(i) If suspect released he might interfere with prosecution witnesses.

(ii) This is a robbery case which carry a maximum punishment of life imprisonment;

(iii) If accused bailed he might abscond; and

(iv) Some of the accused’s associate are yet to be arrested.

In his ruling the learned Magistrate was swayed by the fourth ground relied on, that there was a real likelihood of association with other co-accused’s for the purpose of perverting the course of justice and declined bail.

I have listened carefully to the submissions of Mr. Averre on this matter but unfortunately have not been convinced that the balance of probabilities outweighed the discretion exercised by the learned Magistrate to refuse bail. It is simply not enough to assert that the Magistrate could not have been satisfied on the balance of probabilities. The Appellant must go on to state and demonstrate to this court how and in what way the said learned Magistrate could not be satisfied on the balance of probabilities bearing in mind that little evidence was adduced before the learned Magistrate at the bail hearing itself. Much of the submissions were made from the bar table.

It also cannot be seriously contested that the fourth ground relied on by Prosecution for contesting bail was not a relevant matter which the learned Magistrate was entitled to consider. Rather it was a very relevant matter for the learned Magistrate to consider and that he sufficiently took it into account before exercising his discretion against bail.

Regrettably I am unable to find any error committed by the learned Magistrate in the exercise of his discretion or that there had been a substantial miscarriage of justice which would warrant overturning the order of remand imposed by the learned Magistrate on 29^th October 2003. The appeal is dismissed.

Orders of the Court:

Appeal dismissed.

The Court.

---

^[1] 67 L.J.Q.B 289
^[2] 36^th Edition by Butler and Garsia,
^[3] Unreported Criminal Case No. 266 of 2001 per Kabui J. at pages 2-3
by Kabui J. at page 3
^[4] CRC 128 of 2003, 12^th August 2003 per Palmer J.
^[5] HCSI-CRC 241 of 2003, 1^st October 2003 per Palmer J.