Timo v Regina [2004] SBHC 44; HC-CRC 189 of 2004 (19 May 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case Number 189 of 2004

ROLAND TIMO

v.

REGINA

High Court of Solomon Islands
(Palmer CJ)

Criminal Case Number 189 of 2004

Hearing: 18^th May 2004
Ruling: 19^th May 2004

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

Palmer CJ: The accused Roland Timo (hereinafter referred to as “the Applicant”) was arrested on Thursday 4^th March 2004 on a charge of demanding money with menaces contrary to section 295 of the Penal Code. The victim in that case was Newton Konare (“the Complainant”). An application for bail was made by the Applicant in person but that was refused. He was remanded in custody until 18^th March 2004. On said date he was released on bail with conditions. Those conditions included inter alia the following:

1. Principal bail of $2,000.00.
   
2. To reside at his home address in Ngossi at Honiara.
   
3. Report to Central Police Station every Mondays and Fridays between 0.00 a.m. and 4.00 p.m.
   
4. Surrender any passport held by 4 pm that day and apply for any international travel permits or documents.
   
5. Not to leave the town boundaries with the exception that that evening defendant was allowed to go to Henderson Airport to see his son off.
   
6. Not approach prosecution witnesses or any person reasonably assumed to be a prosecution witness either directly or indirectly except through lawyer.
   

On 5^th April 2004, the Applicant was arraigned before the Magistrates Court, he entered a not guilty plea and a trial date was fixed for 21^st June 2004.

On 17^th May 2004, he was re-arrested for breaching condition 6 of his bail. He was taken before Magistrate Hamilton White and his bail revoked. He now comes for bail before this court.

The circumstances of his breach can be summarized as follows. Prosecution alleges that on or about 7^th April 2004 the Applicant contacted the Complainant and sought to reconcile the matter with him through payment of $500 as well as threatening to take a civil suit against him. He again contacted the Complainant on or about 27^th April 2004 together they went to the office of Mr. Averre to witness the signing of a receipt confirming payment and receipt of certain sums of money. As a consequence of those actions, the Applicant has been charged with further offences:

(i) Conspiring to defeat the course of justice and interfering with witnesses contrary to section 116 of the Penal Code and;
(ii) Bribing with intent to defeat the course of justice in a court contrary to section 122(a) of the Penal Code.

In his submission before me for bail, the Applicant through his Counsel, Mr. Averre points out that the allegations raised against him needed to be considered in the light of the history of the case. Learned Counsel pointed out that the actions for which fresh charges have been laid needed to be balanced with the fact that there had already been attempts made for the parties to be reconciled to each other.

I have taken time to consider the affidavit of the Applicant filed 18^th May 2004 and attachments, the affidavit of Lorraine Kershaw filed 18^th May 2004, the statements of Newton Konare and Simon Waleliofala in respect of the allegations of breach of bail conditions, copy of the hand written records of the presiding Magistrate Hamilton White and copies of the letter of withdrawal dated 6^th April 2004 and receipt of 27^th April 2004.

Reconciliation is provided for under our laws – see section 35(1) of the Magistrates Courts Act. However, its scope is limited to cases of common assault and any offence of a personal nature or private nature not amounting to felony and not aggravated in degree. The purpose of section 35(1) is that it gives the Magistrates Court power to determine on the facts and circumstances before it whether it can order the proceedings to be stayed or terminated.

Where the offence is a felony as is the case with the Applicant, the Magistrates Court do not have power in any event, even if the Complainant or the Prosecution were to bring this to the attention of the Court, the Court would not be able to consider whether to stay or terminate the proceedings. The decision whether to proceed or not with the charge on demanding with menaces is taken out of the responsibility of the Complainant, the Prosecution or the Applicant. Any attempts therefore to seek or get Prosecution to withdraw charges against the Applicant have been fruitless attempts in any event. Prosecution or the Police do not have power to facilitate any withdrawals of the charge and in so far they have affirmed refusal to withdraw charges through reconciliation they are correct. However, that does not mean that reconciliation does not have a place in Solomon Islands jurisprudence. Whether a matter is a felony or not, it is not unlawful for parties to a dispute to arrange and make a customary settlement or reconciliation ceremony between themselves and or their families or tribes. Reconciliation ceremonies before, during and after the ethnic troubles have been taking place throughout the country. Reconciliation ceremonies are entrenched in our culture but also within the context of our civil society whose laws are based on Christian principles. Reconciliation does have a place in our society. It looks to the future so that even after an accused had been punished by the courts under the law, it enables that accused to be able to re-settle back into a community after serving his/her time in prison.

In the case of a felony, whether Prosecution mentions that fact to the Magistrate or court or not, it is always open to the Defence to raise it as a mitigating factor. How much reliance and what weight a court will place on it is a matter for the court to decide in its discretion. It can place much weight and reduce sentence etc. or it may completely ignore it and deal with the accused on the facts before it.

Our laws also allow for the payment of compensation to be made to a victim of an offence – section 27 of the Criminal Procedure Code (“CPC”):

“Any person convicted of an offence may be ordered to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.”

In R v. Paul Rakaimua^[1] at page 5 Muria CJ said:

“Compensation is part of the sanctions used in custom and among the people of this country to settle grievances and to make peace. It is also a form of punishment for committing wrongs against a person or community or tribe. It is therefore appropriate in cases such as the present that some form of reparation is made.”

See also R v. Muliolo Takoa^[2]. The fact a compensation payment may have been made prior to conviction and sentence is a relevant factor which the court would consider at sentence. Again how much weight the court will attach to it is a matter for the court to determine.

The actions of the Applicant though in breach of bail condition no. 6 must be viewed in the light of what had happened, the history of events and the law regarding compensation orders or payments and reconciliation.

The arrest of the Applicant for breach of bail condition no. 6 and his remand was proper. It is a matter for the presiding Magistrate to determine whether the Applicant should be remanded for such a breach or not. I note however that this application before me is not an appeal but a fresh bail application and which requires me to exercise my discretion after hearing submissions from Counsels for and against bail whether bail should be granted or not. I have thought carefully over the matters raised by Prosecution, their objections to bail in the light of what has happened and the fact that there is fear that the Applicant would abscond.

The offence of demanding is a serious offence carrying a maximum of five years imprisonment. The evidence against him is strong coming from direct eye witnesses and the likely sentence if convicted would be imprisonment. The circumstances of the offence were also serious, involving threats which implicated others who may do harm and persons who had access to arms. On the other hand I must balance that with the fact that this Applicant is a resident and a business man and has a lot of vested interest within this country. Any suggestions of flight risk therefore must be minimized by that fact. Also it must be borne in mind that this Applicant had been granted bail and apart from his attempts to effect reconciliation and compensation payments to the Complainant, he has complied with the other bail conditions. I note investigations on the offence of demanding have already been finalized and therefore any suggestions of interference with witnesses or the course of justice are also minimized. His breaches of bail condition 6 must be balanced with his explanations and submission of his Counsel at attempts to effect a reconciliation and compensation payments. Whether an offence or offences have been committed are matters which he will answer for at the appropriate time.

The fact that a bail condition has been breached does not automatically imply he should be remanded. The court is obliged to consider the circumstances under which the Applicant has been re-arrested and to determine whether bail should be revoked or not. I have considered the circumstances of the further charges that he has been charged with and on balance I am not satisfied there is further possibility of interference with witnesses or the course of justice. I also bear in mind that a trial date has already been fixed and the matter is simply awaiting trial.

On balance, the discretion of the court in my respectful view can be exercised in favour of bail on similar conditions.

Bail Conditions:

1. Deposit of $3,000.00
2. Continues to reside at his home at Ngossi Ridge in Honiara.
3. Reports weekly to Central Police Station on Fridays not later than 10.00 am each day.
4. Passport to be surrendered to court.
5. Remains in Honiara.
6. Not to approach the Complainant or any other prosecution witnesses directly or indirectly. Any communications should be done through his lawyer. If the Complainant or any of his agent wishes to approach him about any matter relating to this case, he must decline and refer the matter to his lawyer.
   

The Court.

---

^[1] (unreported) HCSI-CRC No. 24 - 95 per Muria CJ
^[2] (unreported) HCSI-CRC No 115-93