Kwaiga v Reginam [2003] SBHC 87; HC-CRAC 345 of 2003 (30 December 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case Number 345 of 2003

LESLIE KWAIGA

–V-

REGINAM

High Court of Solomon Islands
(Palmer CJ)

Hearing: 30^th December 2003
Ruling: 30^th December 2003

Crystal Lawyers for the Appellant
F. Mwanesalua (Director of Public Prosecutions) for the Crown

Palmer CJ: On 24^th December 2003 the Appellant, Leslie Kwaiga was arrested by RAMSI Police on a charge of wrongfully concealing or keeping in confinement kidnapped or abducted persons contrary to section 252 of the Penal Code. On the same date he was brought before the Magistrates Court by the Police and application made to have him remanded in custody. The Appellant applied for bail but was refused by the presiding Magistrate, Ms. Ferah. He was remanded to 2^nd January 2004.

The Appellant appeals against that order under four grounds; namely, (i) that the offence he is charged with is a bailable offence; (ii) that the learned Magistrate had erred in not properly weighing the grounds for the said remand and grounds for the bail application; (iii) the grounds for the bail application in the court at first instance far outweigh the ground for remand; and (iv) there is no conformity in the granting of or otherwise of bail applications in the lower courts.

Under the first ground, Mrs Samuel submits that the offence Appellant had been charged with is a bailable offence and therefore Appellant should have been given bail even at the first appearance. Whilst that submission is correct, that the Appellant has a right in law to apply for bail it is not an automatic right. It is subject to the discretion of the courts, in this instance the presiding Magistrate. She has right to consider the circumstances of the Appellant and the offence and exercise her discretion judicially, whether the circumstances warranted the accused’s remand or not.

This appeal ground does not take the Appellant’s case any further as there is clear evidence before this court that the circumstances of the offence were disclosed to her in the submissions of the Prosecution and therefore she was made fully aware of the circumstances of the offence.

The second ground relied on alleges that the presiding Magistrate erred in not properly weighing the grounds for remand and grounds for bail. Learned Counsel Mrs. Samuel submits that no reasons were given for the order to remand the Appellant and therefore it can be presumed that there was a failure to exercise her discretion properly.

I would agree with learned Counsel in so far as no reasons had been given by the presiding Magistrate, to support the exercise of her discretion. It is important where there is discretion to be exercised, such as in bail applications, the courts are required to give reasons for their decision why bail has been refused or granted. This is essential in such instances as this where an appeal has been lodged challenging the lawfulness of the exercise of that discretion.

On the other hand, the fact that no reason had been given does not necessarily imply that the discretion had not been exercised properly according to law. The onus is on the Appellant to show to this appellate court that the exercise of the discretion of the presiding Magistrate in this particular instance had been done improperly, even in the absence of reasons to justify the decision or order made. What error did the presiding Magistrate commit? What was wrong about the order to remand the Appellant in custody? Was the order such that no reasonable tribunal, in this instance court, could impose?

This raises the issue contained in the third ground of appeal, whether the grounds for bail in the first instance far outweigh the ground for remand. I do not think it can be disputed that the circumstances of the Appellant were not fully disclosed in the submissions before the presiding Magistrate. She was fully apprised of this as contained in the submissions of the Appellant to the court below.

Mrs. Samuel refers to Archbold’s Criminal Pleading Evidence and Practice 2000 at paragraphs 1652 and cites four matters which the courts are obliged to consider. On the second ground, regarding interference with justice, Mrs. Samuel submits that there is no evidence to support such allegations. Unfortunately, there was material contained in the submissions of the Prosecution “Remand Brief document” for the presiding Magistrate, which indicated at paragraphs 2-6 that there was a real likelihood of such interference occurring. In the affidavit of Anthony David Fox filed today 30^th December 2003, it was further disclosed where that belief originated from. I do not need to go through the whole affidavit in detail but paragraphs 5 and 6 of his affidavit must surely raise a real concern of such interference occurring. For instance, there is suggestion of an undercover agent in the Crime Squad who may be providing information to the Appellant and thereby interfere with the course of justice. These are quite specific statements and even before this hearing, there has been no attempt to explain or purge those statements, for instance by disclosure of that undercover agent! Document (b) identified in the affidavit of Anthony David Fox has been identified by the Appellant as belonging to him.

Document (c) found in his office during a search of the premises of the Appellant further supports the belief that Police have, that there was a real likelihood of interference occurring. I do note the submissions of Mrs. Samuel that the Appellant had denied knowledge of that document, unfortunately that is insufficient for purposes of allaying any fears or real concerns expressed by the Police in this matter and which the presiding Magistrate was entitled to accept although she did not say so. Had further evidence been requested those documentary evidence would have been produced.

Despite assurances in his affidavit that as a lawyer he has no intention of interfering with the course of justice, I am not satisfied that such assurances are sufficient for purposes of allaying any concerns that there will not be interference with the course of justice or witnesses. Paragraphs 9 and 10 of the affidavit of Anthony David Fox further implicate him regarding such concerns.

I am not satisfied accordingly on the submissions before me that what was raised before the presiding Magistrate far outweigh any reasons for refusing bail and that therefore such order was erroneous and made without any basis or factual material. To the contrary there was adequate material before the presiding Magistrate which entitled her to make such decision she had made.

The fourth ground relied on raises the grounds of fairness and inconsistency regarding bail applications before the lower courts. Several cases were cited in relation to this case, that of Moses Su’u, Jackson Olea and Rita Kaukui, who had been charged with more serious or similar offences and that these had been released on bail. Whilst that may be so, it is important to appreciate that each case must be considered on its own merits. I do not have sufficient information regarding those other cases but it seems that initially they had been remanded in custody and later granted bail. This case must be considered on its own merits. In so far as the order made by the presiding Magistrate had been the subject of this appeal, unfortunately, I am not satisfied on the grounds raised before me that an error of law had been demonstrated which would warrant the interference of this court with that order, at this particular point of time.

I only need to make one further comment that in so far as it had been suggested there may have been a direction given to the Magistrates to remand every accused person brought before the courts in the first instance, such direction is wrong and must be disregarded if ever it was made. Each court is obliged to consider the circumstances of each case on each occasion it is brought before it whether bail should be granted or not and to provide reasons.

The appeal is dismissed.

THE COURT.