Regina v Sosupo [2004] SBHC 14; HC-CRAC 021 of 2004 (13 February 2004)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 21 of 2004

REGINA

-v-

TINGARIA SOSUPO

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J).

Date of Hearing: 13^th February 2004
Date of Ruling: 13^th February 2004

B.J. Liddy for the Appellant
H. Kausimae for the Crown

RULING

Kabui, J. The appellant is a convicted prisoner serving his prison sentence in the Rove Prison. He had been convicted on his own plea and sentenced by the Magistrate Court in Gizo on 27^th October 2003. His Solicitor, Mr. Liddy, filed an appeal against sentence together with an application for bail on 23^rd January 2004. Both matters were listed before me for hearing this morning at 9.30am. In court, Counsel for the appellant informed me that due to the relevant Court File from the Magistrate Court in Gizo not being available, he would not proceed with the appeal but however would proceed with the bail application instead.

The bail application was being brought under section 106(3) of the Criminal Procedure Code Act (Cap. 7) (“the CPC”) but I pointed out that the relevant provision was section 290 of the CPC. This section states-

“...(1) Where a convicted person presents or declares his intention of presenting a petition of appeal, the High Court or the court which convicted such person may, if in the circumstances of the case it thinks fit, order that he be released on bail, with or without sureties, or if such person is not released on bail shall, at the request of such person, order that the execution of the sentence or the order against which the appeal is pending be suspended pending the determination of the appeal. If such order be made before the petition of appeal is presented and no petition is presented within the time allowed the order for bail or suspension shall forthwith be cancelled.

(2)-------------------------------------------------------------------------------.

(3)-------------------------------------------------------------------------------.”

This section applies specifically to any person who, having been convicted of an offence, wishes to appeal his or her conviction or sentence and wishing to apply for bail pending appeal. Chapter IX of the Code puts the matter beyond doubt in that the chapter applies to appeals from magistrates’ courts and case stated. Section 106 of the CPC is, in my view, a general section and would seem to apply to criminal proceedings before conviction and sentence.

Application for Bail.

This application for bail was being heard by the Court in the absence of the Court File from the Magistrate Court in Gizo containing the details of the proceedings at the hearing in Gizo. The appellant did file an affidavit on 23^rd January 2004 in which he stated the reasons in support of his application. Obviously, the offence of common assault, contrary to section 244 of the Criminal Procedure Code Act (Cap. 26) “the Code” and going armed in the public, contrary to section 83 of the Code are serious offences. However, his Counsel argued that in spite of the serious nature of these offences, bail could still be granted. The incident which gave rise to his arrest would appear to be a matter involving the members of the same family and being so, reconciliation had taken place to mend the situation. In fact, the complainant had gone to the Police in Gizo to tell them to withdraw her complaint which they did not do. The appellant had appeared in the Magistrate Court in Gizo, unrepresented. The appellant is of good character with no previous conviction. He has a wife and a family who live in Buri village in the Western Province. His wife had visited him once and is intending to return in the future. There is evidence of the fact that his health is not so good although the prison authorities could well attend to this in the usual manner. There is the risk that if bail is not granted and the Court File from Gizo Magistrate Court is not located quickly, the appellant will have completed his term of imprisonment before his appeal comes on for hearing. If the appeal is allowed after the completion of his prison term, the benefit of the appeal is clearly forfeited. That would be an injustice to say the least. Therefore, in the exercise of my discretion under section 293(1) of the CPC, I hereby grant bail to the appellant. In doing so, I order that the appellant be released on bail on the following conditions-

1. That the appellant reside in Honiara with his wife and her mother at White River until the hearing of his appeal;
   
2. That he must report to the Central Police Station every Monday before the 6pm;
   
3. That he must not leave Honiara until the hearing of his appeal.
   
4. That this order remains valid until further order of this Court.
   

F.O. Kabui
Puisne Judge