Kwaimani v Regina [2005] SBHC 11; HCSI-CRC 318 of 2004 (8 September 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case 318 of 2004

In the matter of: an application for bail

Between

PHILIP SUIGA KWAIMANI
Applicant

and

REGINA
Respondent

Date of hearing: 19 August 2005
Date of judgment: 8 September 2005

RULING - JURISDICTION

Phillip Kwaimaini faces two charges of attempted murder. He appeared before the magistrates’ court on those charges and was refused bail. He now applies to the High Court for bail on those charges, not by way of appeal but by way of fresh application. The Crown objects to this procedure and submits that the court has no jurisdiction to hear and determine the matter in this way. They submit that this should be heard and determined by way of appeal against the magistrates’ decision.

This decision relates to jurisdiction only. The parties to the application submitted in court and in subsequent written material. I do not intend to repeat those submissions.

It is section 106 of the Criminal Procedure Code that sets out when and if a person accused of a crime can be admitted to bail. It reads:-

106.—(1) Subject to the provisions of section 23 where any person, other than a person accused of murder or treason, is arrested or detained without warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person may in the discretion of the officer or court be admitted to bail with or without a surety or sureties.

(2) The amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.

(3) Notwithstanding anything contained in subsection (1), the High Court may in any case direct that any person be admitted to bail or that the bail required by a Magistrate's Court or police officer be reduced.

Section 23 referred to in section 106 provides simply that if the police will not grant bail, then the accused must be taken before a magistrates’ court as soon as practicable.

The essence of the Crown submission can be usefully summarized as saying that section 106(3) allows the High Court to consider the grant of bail in cases of murder or treason only. In addition it permits the High Court to review the amount of bail ordered in the High Court. (See page two, paragraph four of written submissions from the Director of Public Prosecutions.)

That position, it seems to me, is quite untenable. To accept such a position would be to distort unnecessarily the clear language of the section.

The Crown further submits that an applicant for bail does not need to be able to make a fresh application when they can exercise the right to appeal against the decision of the magistrate. The Crown submits that this parallel procedure serves to strengthen their argument. It is quite correct to point out that the avenue of appeal is indeed open to such a person. Quite how it can be a valid argument for removing a clear right set out elsewhere in legislation I must confess I cannot see.

The question of bail in criminal proceedings is a most important question in any jurisdiction. Currently, in this jurisdiction, it is of particular importance. Often the pre-trial period (in non murder or treason cases) in custody will match or even exceed any likely custodial sentence. This would suggest that the decision about bail is of more practical importance to the alleged offender than the decision of the court to convict or acquit.

The High Court has a general power to supervise criminal proceedings in subordinate courts. This power can be found in the Constitution.

84.—(1) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before any subordinate court and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by any such court.

That provision alone, in the view of this court, would suffice to establish that the High Court has the power to hear and determine a bail application brought before it de novo. When this provision is supported by the words previously set out in section 106, the position seems even clearer.

In the course of submissions, a number of matters were raised that touched on the nature of bail applications. One such matter was whether they should be considered as a waste of resources. Another was whether repeated bail applications in the absence of new circumstances should be entertained by any court. It seems appropriate that these matters should receive comment bearing in mind their general importance.

The importance afforded the right to bail by the legislature is clear. One finds in the legislation all the usual protections afforded to a citizen in a democracy, beginning with the presumption of innocence and ending with the restriction on the time a magistrate can remand an accused. Of particular significance is the constitutional provision found in Part II.

5.—(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say—

. . . .

(f) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands;

But that power is itself again fettered, as can be seen from the following proviso:-

. . . (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.

Taken together these provisions mean that when a person has been remanded in custody for good reason, if the trial does is not to take place within a reasonable time, then, even so, the arrested person must be released.

It is difficult to imagine how the legislature could have impressed the importance of the right to liberty with any greater clarity. It should not be surprising therefore that this court does not accept that the hearing of a bail application is a waste of resources.

It also demonstrates, as has been demonstrated elsewhere, that the effluxion of time in itself can amount to a change in circumstances. This is relevant if it is determined that a repeated bail application should only be considered by the same court when there are fresh matters to be put before the court. This procedure was adopted in England and Wales in time past not through legislation but through case law. It came about through R v Nottingham JJs Ex Parte Davies (1981) QB 38. Nottingham magistrates decided that they would not hear the repeat of a bail application made the previous week, after the first and second weekly appearance, if there was nothing new to be said. This was a substantial departure from the norm, and quickly found its way to the High Court on review. In the High Court it was said that this practice was perfectly proper.

In that case the High Court reminded the magistrates’ court that repeatedly inquiring into the same subject matter without any fresh circumstances was to be reviewing, almost allowing an appeal against, a matter already decided. That, the High Court said, was wrong as a matter of principle. It was not a question of interpreting the provisions of the legislation then in force, it was an old common law principle that was being abused.

That principle is equally applicable here. A magistrates’ court should not hear a repetition of the same material it has previously heard in circumstances where nothing has changed. The Nottingham case referred to that in different ways. ‘A change in circumstances’, ‘fresh circumstances’, ‘matters not previously put before the court’, ‘new considerations’ were phrases variously used by counsel in the proceedings and by the court. What the court said was that no court should not hear arguments as to fact or law which it has previously heard unless there has been such a change of circumstances as might have affected the earlier decision: to do otherwise would be to act in an appellate capacity. As can be seen from that dictum, it applies to the same court, not to courts of different levels. Thus it would be not appropriate to apply it as between the High Court and the magistrates’ court; it applies only to that court of first instance.

The bar referred to above might serve to limit the number of bail applications made in the magistrates’ court over a period of time, but it does not serve to remove the jurisdiction of the High Court as outlined above. The High court on hearing an application may well conclude that there is nothing about the decisions previously made that it wishes to review, but that is quite different from the position of the Crown, that the High Court cannot even entertain the matter. Even in the Nottingham case, the High Court simply said that the justices should not entertain certain arguments (those that had already been put forward). It did not say that a bail application could not be made.

Although it was not referred to by either counsel in this matter it is worth considering the effect of section 56 of the Criminal Procedure Code. That section provides as follows:-

56. The High Court may inquire into and try any offence subject to its jurisdiction at any place where it has power to hold sittings:

Provided that no criminal case shall be brought under the cognizance of the High Court unless the same shall have been previously investigated by a Magistrate's Court and the accused person shall have been committed for trial before the High Court.

It could be said that this might suggest that the High Court must wait until a matter had been committed for trial before it may consider the question of bail. That argument, however, cannot be correct. For if it were to mean just that, then the High Court could not even entertain an appeal against a bail decision – a contention not even supported by the Crown. Section 56 is a simple restriction into the trial of the subject matter of the offence, when it is destined for but prior to its committal to the High Court. In entertaining a bail application, the High Court is not bringing the criminal case under its cognizance, just as one would not say that by hearing an appeal against a sentence in a criminal matter (imposed by a magistrate who would not have committed the matter for trial in the High Court) the High Court would have so done.

Parallel provisions are not inherently wasteful nor do they necessarily hinder the process of justice delivery. It must be borne in mind however that there could be situations where they could lead to confusion. In dealing with a fresh bail application the High Court is not going to deal with the matter in a vacuum, for it will require information about the magistrates’ decision. That material can be presented by with party to the application. The High Court will also require that the applicant disclose whether the decision of the magistrate is the subject of an appeal. Again either party to the application can provide that information. No doubt the High Court would combine such matters if any applicant were foolhardy enough to pursue both avenues at the same time. Given these safeguards, the point made by the Director in argument about wasting resources carries even less weight.

Having determined that the magistrates’ court should follow the principle set out in Nottingham, it should not be necessary to point out that the High Court will apply the same principle in dealing with bail applications in its jurisdiction.

The question asked of the High court at this stage of these proceedings - whether there is jurisdiction to hear and determine a bail application - is answered in the affirmative.