Kelesiwasi v Reginam [2004] SBHC 13; HC-CRC 024 of 2004 (11 February 2004)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 24 of 2004

LAWRENCE KELESIWASI

-V-

REGINA

High Court of Solomon Islands
(Palmer CJ.)

Hearing: 10^th February 2004
Ruling: 11^th February 2004

K. Averre for the Applicant
J. Cauchi for the Respondent

Palmer CJ: The Applicant Lawrence Kelesiwasi (hereinafter referred to as “the accused”) was remanded in custody on 21^st January 2004, following his arrest on additional charges of attempted murder (2 counts), threatening violence with firearm (2 counts), wilful and unlawful damage and grievous harm. Those charges related to offences alleged to have been committed on 7^th May 2000 and on 3^rd May 2002.

He had been earlier arrested, charged and remanded in custody on 25^th November 2003 on charges of intimidation (2 counts), demanding property with menaces and wilful damage, offences alleged to have been committed on 25^th November 2003 and 9^th March 2003. On 8^th December 2003 however he was released on bail until 21^st January 2004 when he was re-arrested on additional charges and remanded in custody.

The Defence case is basically that having been released on bail he had complied with terms of bail and thereby shown that he is to be trusted whilst on bail; that he had not attempted to abscond or interfere with any other witnesses or to commit any other offences whilst on bail.

Prosecution on the other hand submit that the additional offences with which he had been charged raised the stakes in terms of seriousness of the offences charged with, the possibility of interference with witnesses, the likelihood of absconding and that further charges may be laid against this accused.

Bail is a right protected by the Constitution (section 5(2)). However there is a discretion regarding the granting of bail. It is not automatic^[1]. It may be refused in certain situations. It is for the Prosecution to show on sufficient and proper information before the court that the circumstances of the offence and/or the circumstances of the offender warrant the accused’s remand in custody.

Without a doubt, the additional offences with which the accused had been charged with were much more serious with stiffer penalties ranging from two years for wilful and unlawful damage and threatening violence with a firearm, to 14 years for grievous harm, and life imprisonment for attempted murder.

The evidence against the accused in respect of those offences is direct, consisting of victims’ accounts to his alleged acts of violence and intimidation during the period of lawlessness; it cannot be said that the evidence is weak. Some of the more serious offences were committed against police officers, working colleagues of the accused. The likely sentence if convicted, going on the current sentencing range of the courts, is a foregone conclusion. Some former senior police officers convicted of similar offences on guilty pleas are serving custodial sentences ranging from 3-5 years.

The circumstances in which some of the offences this accused is charged with cannot be described as anything but grave, a fortiori when they are allegations made against a senior member of the Royal Solomon Islands Police Force, someone expected, under duty, to uphold the rule of law and to lead by example. Not only that, but the allegations pertaining to the circumstances in which the offences relating to the use of firearms occurred at the very heart of the Royal Solomon Islands Police Force compound at Rove; that is extremely serious; lives of other police officers had been placed at great risk. There was no hesitation in the use of firearms to intimidate and threaten others.

The facts show that the accused had been granted bail earlier on and had complied with the requirements imposed. He has deposed to the fact that he has strong community ties in Honiara; that is he has a wife and children living in the vicinity of the city. I take these into account in considering whether bail should be refused or not.

The ultimate question whether bail should be refused or not in this case boils down to a careful balancing exercise by this court on whether there is possibility of absconding, interference with the course of justice and the likelihood of commission of further offences.

I have taken time to consider carefully the issues raised in submissions before me, as well as reading the affidavit of the accused himself filed 23^rd January 2004 in support of his application for bail and the affidavit of Nathan Glenn Robertson filed 10^th February 2004 in opposition.

I accept the submission of learned Counsel Mr. Cauchi that the arrest of the Accused on additional charges on 21^st January 2004 raised the stakes from a mere possibility to a probability, that the accused would abscond, interfere with witnesses and the course of justice, and the commission of further offences whilst on bail. The extent of gravity in the nature of the accusations raised, the strength of the accusations and the severity of punishment if convicted, support the fears and concerns raised by prosecution in opposing bail.

The allegations against this accused occurred over a range of time from 2000, 2002 and the latest in November 2003, it cannot be argued on his behalf that these were one off situations; they do show acts of deliberate and blatant disregard to the rule of law, more so by a serving member of the Royal Solomon Islands Police Force; these do not assist in his bail application today. May be, if it was a one of situation, I might have considered in his favour, but not where there is a string of allegations hanging over him alleged to have been committed over a period of time.

The prosecution is entitled to doubt the assurances deposed to by this accused in his affidavit. He had demonstrated that he cannot be trusted. An oath of allegiance is the strongest promise that any officer can take; the uniform worn by officers should be a constant reminder of that solemn duty; that has not been the case with regards to this accused. Even as recently as November 25 2003, this Accused was prepared to threaten a fellow officer in the due discharge of his duties. I am satisfied on the balance of probabilities, given the opportunity, if he can get away with it, this accused would interfere with witnesses, with the course of justice, if he could, abscond, and to the extent of further commission of offences.

Accordingly bail is denied. The accused is to be remanded and to be brought before the Central Magistrate Courts for review on Friday 13^th February 2004 at 9.00 am.

THE COURT.

---

^[1] Section 106 of the Criminal Procedure Code