Kwaiga v Reginam [2004] SBHC 16; HC-CRC 038 of 2004 (17 February 2004)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 38 of 2004

LESLIE KWAIGA

-V-

REGINAM

High Court of Solomon Islands
(Palmer CJ.)

Hearing: 17^th February 2004
Ruling: 17^th February 2004

Mrs. M. Samuels for the Applicant
Mr. C. Ryan for the Respondent

Palmer CJ.: The Applicant LK (“the Accused”) has been charged with a number of offences; wrongfully concealing or confining an abducted person contrary to section 252 of the Penal Code – classified as a felony carrying a maximum sentence of 7 years, intimidation and molestation contrary to section 231 – maximum sentence of 3 years, and conspiracy to defeat the course of justice and interference of witnesses – classified as a misdemeanour.

The Accused has been in custody since his arrest on Christmas Eve 24^th December 2003 initially on the charge of abduction. He has made various applications for bail before the Magistrates Court, an appeal to this court and now a fresh application for bail under section 106(3) of the Criminal Procedure Code.

The manner in which this bail application has sought to be made is somewhat unusual as it seeks to rely on the provisions of the Constitution as a basis for the bail application without going through the requirements set out in section 18 of the Constitution. The various constitutional provisions invoked by Mrs. Samuels in support of the application for bail cannot be seriously entertained by this court in the absence of compliance with the procedures set out in section 18. Those provisions do set out the guidelines or limits of the fundamental rights of the individual but unless it is alleged that these have been breached and an action brought under that section, they are of little assistance to the accused in this application.

It is correct in so far as section 5(3) (b) of the Constitution is concerned to say that it recognizes the right of bail, but it cannot be said that it is mandatory. There is discretion to be exercised by the court. It may be refused in certain situations, where the circumstances of the offence and or the offender warrant a remand.

The courts therefore are obliged to consider in each case whether bail should be granted and to refuse it only where the circumstances warrant.

The offences for which the accused had been charged with are serious; the accused does not dispute that. The maximum penalty for the more serious offence for which he has been charged with is 7 years. It should be borne in mind though, that there are other co-accused charged with similar offences or more serious offences.

The evidence to date is contained in the remand brief annexed to the affidavit of Anthony David Fox filed 16^th February 2004 and marked as “Annexure B”. It appears no witness statements have been released to date and despite having been remanded in custody for close to two months, this accused does not know the full extent of the matters alleged against him. In contrast he has produced in that same period statements denying involvement and has even gone to the extent of providing a list of witnesses that he would be relying on. This court therefore apart from that remand brief does not have the necessary information to assess the strength of the prosecution case even at this point of time, especially in the light of his own clear statements denying involvement to the offences for which he has been charged with.

I do bear in mind though that the likely sentence if convicted would be imprisonment.

It cannot be denied that the circumstances surrounding the abduction and killing of S. Saki were serious. But apart from the remand brief placing him at Mt. Austen with others, this accused has consistently denied his involvement and has provided witnesses to support his case. On the balance of probabilities this must be considered in his favour.

I note the accused is a lawyer by profession, has a family and has a fixed place of abode. I note his wife is from Papua New Guinea but has never sought even up till his arrest, to leave the country. He has no previous convictions.

A number of documents were relied on in support of the concerns expressed by prosecution. The first is a document marked “a” to an earlier affidavit of Anthony David Fox filed 30^th December 2003 in support of an earlier application to this Court on an appeal objecting bail. That document is a letter alleged to have been smuggled out of prison by another co-accused Jimmy Rasta Lusibaea to another co-accused, Malcolm Lake dated 5^th December 2003. It was found on the person of Malcolm Lake on his arrest on 24^th December 2003. It was sought to be suggested that the accused would be approached to try and interfere with the course of justice. What was said in that letter was also sought to be linked with an allegation by another co-accused Moses Su’u that he had received a letter from this accused “threatening him”.

Unfortunately having listened carefully to the evidence of Mr. Fox I am not satisfied on the balance of probabilities that anything sinister can be attributed to what was implied in that letter and the allegation of Moses Su’u bearing in mind that there is no direct evidence of the existence of any letter or note from this accused to Moses Su’u and bearing in mind that Moses Su’u is also a co-accused in the abduction and murder of S. Saki. Even if true, there is nothing in what was alleged as amounting to any direct threats to Moses Su’u. Mr. Fox conceded this in his evidence on oath.

There is no evidence to suggest either that Malcolm Lake had communicated with this accused regarding that letter of 5^th December 2003. When Mr. Fox was asked if he knew when that letter was received by Malcolm Lake, he did not know. In his affidavit filed 2^nd February 2004, the accused denied knowledge of any such letter and denied communicating with Moses Su’u. The balance of probability must go in favour of the accused.

Document “b” was a record of a conversation between the accused and a Mr. John Baura, (according to the evidence of the accused), a disabled person who could not talk properly but who could write fairly well. It is now clear that the person who says he has an agent in CID in that letter was John Baura, not the accused, and that he (J. Baura) had volunteered that information to the accused. During cross examination of Mr. Fox there was no suggestion of any further communications being made between the accused and J. Baura thereafter. Apart from what was contained in that document there has been no evidence to support the allegations that the accused has been in consort with J. Baura to interfere with the course of justice or of any further likelihood of interference from them at this point of time.

Document “c” relates to a document found in the office of the accused. There is suggestion that it’s presence in the accused’s office was improper thereby suggesting that he was attempting to pervert the course of justice. In his affidavit however, this accused provides a plausible explanation which has not been dispelled or disproved. On the balance of probabilities this must also go in his favour.

On the question of his level of involvement with the Malaita Eagles Force (“MEF”), this accused has consistently denied direct involvement other than as deputy spokesman and negotiator. There is material exhibited in his affidavit which supports his claim. The evidence adduced by Mr. Fox does not take that matter any further as against him in this application.

On the belief alluded to by Mr. Fox that prior to the arrival of the Regional Assistance Mission to Solomon Islands (RAMSI) the accused had conspired with others to concoct a false story concerning abduction and murder of S. Saki, there is no other material before me in support of that belief. When asked in cross examination about such meeting, the most that can be given was that it was held at Malcolm Lake’s residence. No further details can be given.

I have considered the submission that the accused will be representing himself in court and that he needs time and facilities to properly represent himself, that however has not had much influence on the question whether bail should be granted or not.

On the question of absconding, I am not satisfied that the fear expressed by prosecution in the case of this accused is justifiable.

There are suggestions that the accused may be charged with a murder charge this afternoon. With respect that is a matter which will be dealt with when it does arise and if there is need for a further application for remand or bail to be made, that can be made at the appropriate time.

One of the primary purposes of bail is to ensure that the accused appears in court to answer charges to be put to him on the date and time appointed.

I have listened carefully to the submissions of learned Counsels in this matter and have sought to give such weight due to them. On balance, the scales tilt in favour of bail with conditions, set out as follows:

1. Cash bail of $1,000.00 to appear at the Central Magistrates Court on Tuesday 2^nd March at 9.00 am.
   
2. As well require an independent surety of $1,000.00
   
3. Passport to be surrendered.
   
4. Not to leave the town boundary without leave of the court.
   
5. Not to communicate with any Police witnesses. For this purpose a list of persons, witnesses that Prosecution do not want this witness to communicate with should be filed in court.
   
6. To report to Central Police Station every Fridays not later than 10.00 am.
   

An order of discharge will be signed once these conditions have been fulfilled.

ORDERS OF THE COURT:

The application for bail is granted on the following conditions:

1. Cash bail of $1,000.00, to appear at the Central Magistrates Court on Tuesday 2^nd March at 9.00 am.
   
2. An independent surety of $1,000.00 to be provided to the satisfaction of the court.
   
3. Passport to be surrendered.
   
4. Not to leave the town boundary without leave of the court.
   
5. Not to communicate with any Police witnesses. (For this purpose a list of persons, witnesses that Prosecution do not want this witness to communicate with should be filed in court).
   
6. To report to Central Police Station every Fridays not later than 10.00 am.
   

THE COURT