Seko v Regina [2005] SBHC 100; HCSI-CRC 350 of 2005 (1 September 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 350 of 2005

RODDY SEKO

-V-

REGINA

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 22^nd August 2005
Date of Judgment: 1^st September 2005

Ms. M. Swift for the Applicant
P. Little for the Crown

Palmer CJ.: The Applicant, Roddy Seko has been in custody since 7^th May 2004 following his arrest on a number of charges:

(i) three counts of murder contrary to section 200 of the Penal Code – penalty, life imprisonment;

(ii) one count of arson contrary to section 319(a) of the Penal Code - penalty, life imprisonment;

(iii) one count of wrongfully confining abducted persons contrary to section 252 of the Penal Code – penalty, 7 years;

(iv) one count of being a member of an unlawful society contrary to section 68(a) of the Penal Code – penalty 3 years; and

(v) one count of resisting arrest and escape contrary to section 125 of the Penal Code – penalty 2 years.

All the offences apart from the count of resisting arrest and escape relate to events committed at Marasa village in the Weathercoast of Guadalacanal in June 2003 whilst he was engaged in criminal activities as a member of Harold Keke’s group, the Guadalcanal Liberation Front (“GLF”). Most of the offences were committed in the company of other co-defendants numbering to some 14 or so members and their combined trial now listed for trial to commence on 24^th April 2006 for some 8 weeks.

The accused has now been in custody (remand) for some 15 months. By the time his trial commences he will have been in custody for close to 24 months.

Applicant applies for bail and relies on the delay in the hearing of his trial as an exceptional circumstance warranting the consideration of this court to give bail under section 106(3) of the Criminal Procedure Code. He relies on the provisions of the Constitution, section 5(3)(b) which provides:

“(3) Any person who is arrested or detained—

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands, and who is not released, shall be brought without undue delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.” [emphasis added]

Learned Counsel Ms. Swift for the Applicant also relies on an extract from the Amnesty International Fair Trials Manual ^[1] (“the Manual”) which sets out relevant standards supporting the issue of rights of an accused to trial within a reasonable time or release pending trial. The Manual sets out five standards as follows:

1. Article 9(3) of the ICCPR: “Any person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.”

2. Principle 38 of the Body of Principles: “A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.”

3. Article 7(5) of the American Convention: “Any person detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.”

4. Article 5(3) of the European Convention: “Everyone arrested or detained in accordance with the provisions of this paragraph 1(c) of this article shall be brought before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.”

5. Paragraph 2(c) of the African Commission Resolution: “Persons arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released.”

The Manual sets out two standards; the first one applicable to detainees, that those in detention are to be brought to trial within a reasonable time or released. This is based on the presumption of innocence ^[2] and the right to personal liberty ^[3], which requires that anyone held in custody is entitled to have their case given priority and to have their proceedings conducted with particular expedition ^[4]. The second set of standards relates to those arrested and or detained, that they have a right to have their trials held without undue delay. The main purpose is to minimise unduly prolonged uncertainty and that evidence is not lost or undermined.

The Manual then sets out a number of factors which the Human Rights Committee and regional bodies consider to be relevant matters in examining or assessing the reasonableness of a period of pre-trial detention:

(i) the seriousness of the offence alleged to have been committed;

(ii) the nature and severity of the possible penalties;

(iii) the danger that the accused will abscond if released;

(iv) whether the national authorities have displayed “special diligence” in the conduct of the proceedings, considering the complexity and special characteristics of the investigation;

(v) whether continued delays are due to the conduct of the accused (such as refusing to cooperate with the authorities) or the prosecution.

Conclusions.

(i) The seriousness of the offences. It cannot be disputed that the level or degree of seriousness of the offences for which the Applicant has been charged with must be described as extremely serious. Three murders were committed over a space of two days. The murder charges which relate to the victims Adrian Smith Bilo and John Lovana were extremely serious; done through vicious and merciless assaults on helpless victims who had their hands tied at their backs and accused as spies. They were basically beaten to death. The autopsy reports done on the bodies of the victims after exhumation would appear to be consistent with the use of blunt force trauma to the bodies of the victims.

The arson charges relate to the torching of some 12 houses at various villages within Marasa; it would seem in the majority of cases representing life time savings of the victims.

The charges on wrongfully confining abducted persons relate to some 400 villagers many of them with hands tied at their backs. It needs to be borne in mind that the offences were committed with the use of high powered guns to intimidate, control and terrorize many innocent villagers at that time. The circumstances under which the offences were committed were extremely serious.

(ii) The nature and severity of the possible penalties. The sentence for murder if convicted is a mandatory sentence of life imprisonment. There are three counts of murder which naturally raises the likelihood of a conviction and penalty of a life sentence being imposed a real possibility.

Arson carries a maximum sentence also of life imprisonment and wrongfully confining an abducted person at 7 years. At least four of the offences for which the Applicant has been charged with carry a maximum of life imprisonment. At the lower end, the offence of resisting arrest and escape carries a maximum sentence of two years. The possibility of a long custodial sentence if not life imprisonment in this Applicant’s case is cannot be described as minimal, remote or even a mere possibility. Taken at its highest, prosecution case rests on statements of direct eye witness accounts of the crimes alleged.

(iii) Risk of absconding. In support of his application for bail, the Applicant relies on his affidavit filed 2^nd August 2005 in which he deposes that if released he will reside with his uncle John Gedrin, sister Jennifer Taro and her husband Michael Oliver at Titinge. He deposes that for 11 months after the alleged incidents he continued to reside in his village at the Weathercoast and did not in any way seek to interfere with investigations or witnesses. His uncle John Gedrin has also filed affidavit of 22^nd July 2005 in which he offers to allow the Applicant to reside with him and to act as surety for him if required.

These on the other hand have to be balanced with the risk of absconding if released based on the seriousness of the offences and the possibility of life imprisonment if convicted. The stakes naturally are raised and the risks to the public sector likewise.

(iv) Conduct of the Proceedings. According to the records in the file, following arrest of the Applicant on 7^th May 2004, he was committed for trial in the High Court on 9^th July 2004, some two months later. This in my respectful view is extremely efficient bearing in mind the complexities involved in investigating such cases involving multiple murders and hundreds of witnesses to be interviewed and exhibits and reports collected and made. The Director of Public Prosecutions filed Information 3 days later on 12^th July 2004. No or very little delay therefore can ever be attributed to the Prosecution or the Police in having this case brought to court. The first trial date was not fixed until the call-over done by this court on 19^th November 2004. At that call-over it was agreed to fix this case for trial to commence on 5^th September 2005 for 8 weeks. Later this trial date was vacated and a new trial date given for 24^th April 2006, which subsists to date.

It is important to appreciate that this case is not as simple as it looks on the surface or first impression when trying to allocate a trial date to it. As mentioned earlier, this Applicant has been listed together with some 13 other co-accuseds to stand trial on similar or related serious charges. The total number of witnesses from the police briefs before this court runs up to 73 with a further 24 consisting of police and expert witnesses. Of those police witnesses, the majority appears to be witnesses from the RAMSI-PPF contingent, most or all of whom now reside overseas. To bring them back into the country requires careful coordination and will be a very costly exercise. Without the assistance from RAMSI-AusAID under the Case Support Unit Project, it would have been extremely difficult to confidently forecast any successful listing of this case and trial so soon. Further, nearly all of the accuseds’ it seems may have to be separately represented and so will be tying up nearly all or most of the resources of the Public Solicitor’s Office during the period when the trial will be on. The sheer size of coordinating most of the local 73 witnesses, who reside at the Weathercoast of Guadalcanal and looking after them whilst in Honiara during the trial will involve a lot of time, planning, money and expense. Not to mention security arrangements in having such large numbers in one court room.

In listing this case for trial, this court has had to take into account all other factors and try as much as possible to restrict listing of other cases during that time. This required careful consultation with all stakeholders in the listing of cases. This also partly explains the reasons for vacating the original hearing date to a later date in 2006.

In the circumstances, I am not satisfied the delay in the listing of this case can be described as unreasonable or amounting to undue delay and a breach of his Constitutional rights under section 5(3)(b) of the Constitution so as to justify releasing him on bail pending trial.

Orders of the Court:

Bail application dismissed.

THE COURT.

ENDNOTES:

1. Amnesty International Publications, 1 Easton Street, London WC1X8DJ, United Kingdom at Chapter 7 page 49
2. see section 10(2)(a) of the Solomon Islands Constitution.
3. See section 5(3)(b) of the SI Constitution.
4. European Court, Tomasi v. France 27 August 1992 241 A Er. A para. 84; Abdoella v. The Netherlands, (1/1992/346/419), 25 November 1992.