Kwaimani v Regina [2005] SBHC 12; HCSI-CRC 318 of 2004 (21 September 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

HC CRC 318 of 2004

PHILIP SUIGA KWAIMANI

v

REGINA

(Goldsbrough J)

Date of Hearing: 16 September 2005
Date of decision: 21 September 2005

This applicant seeks bail from the High Court in relation to two charges of attempted murder. He was arrested on 29 December 2004 and has remained in custody since that date. He made an application for bail before the magistrates’ court in June 2005 which was refused. He did not appeal that bail decision but chose to make a fresh application for bail to this court as he is entitled to do.

The circumstances of the two charges of attempted murder arose on 21 October 2004 when shots were fired at a police vehicle. The applicant has been committed for trial by the magistrates’ court. This committal took place on Tuesday 13 September 2005.

The grounds on which the prosecution oppose bail are that they fear the applicant may abscond given the serious nature of the charges and that the applicant will interfere with prosecution witnesses.

The first ground on which the prosecution seeks to rely is based on the potential sentence for the two offences, which is life imprisonment. But the serious nature of the charges alone are often said not to support such a ground. In this case they suggest that there is evidence that the applicant fled to Malaita after the incident and hid with a fugitive from justice, Edmund Sae. This, they say, suggests that the applicant knows where Edmund Sae is and how to hide again should he be given the opportunity. The police have been looking for Edmund Sae for some time without significant success. Counsel for the applicant did concede that the serious nature of the allegations could give rise to the possibility of absconding but did not directly address the issue of the applicants’ knowledge of and hiding with Edmund Sae.

The second ground of objection relates to the potential for further attacks on police officers and the risk of interference with witnesses. The prosecution here alleges that the applicant conspired with others to shoot at this police vehicle and that it was part of a concerted effort to destabilize the country and cause the withdrawal of the Regional Assistance Mission to Solomon Islands. It further alleges that the applicant may still have access to firearms, as the weapon used in the shooting has not been recovered and that threats have been made by the applicant to witnesses, either in Rove prison or, if he is released, to anyone “who has told lies about him or has made a statement against him”.

This information has come to the attention of the prosecution through an unnamed informer. It is not the intention of the prosecution, for obvious reasons, to disclose any further details of this information. That, of course, puts the defence in some difficulty as the defence pointed out in submissions.

It does not though, in my view, support the view that the threats to witnesses are non-existent as the defence thereafter submitted. I believe that the correct view would be to take note of the threats as alleged by the prosecution but to exercise a degree of caution as regards the threats, rather than to deny that they exist at all.

On behalf of the applicant it was submitted that he has co-operated with the police in their investigations. He made admissions during interview, which the prosecution draw upon to support the strength of the evidence against the applicant, but the admissions, so it was submitted, are to be challenged. In those circumstances, the degree of co-operation suggested by the defence becomes somewhat limited.

An accused person should not be held in custody pending trial unless there are substantial grounds to believe that he may fail to surrender to bail or substantial grounds to believe that he may interfere with witnesses. There are other circumstances where bail may be refused but they are not alleged here. Does this information about his previous time in Malaita and what the prosecution say has been said by the applicant about witnesses amount to substantial grounds for such a belief?

In my view the matters put before this court do amount to substantial grounds for believing that this applicant would if granted bail attempt to interfere with witnesses. There is not simply one suggestion from the unnamed informer. There are allegations that the applicant spoke to two other inmates. There were no threats made, but the applicant spoke about his part in the attempted murder and about people who he thought should recompense him for that attempted murder.

Again this information must be treated with caution, in the main because of its source, but it cannot be said not to exist.

One main thrust of the bail application was the length of time that the applicant may spend in custody pending trial. With this in mind the Constitutional provision of a trial within a reasonable time was cited. This provision must, and should, be complied with. Whether this applicant will receive a trial within a reasonable time has not yet been ascertained. Indeed there are no decisions yet on what constitutes a reasonable time. Certainly he has not yet been in custody for such a long period as to already suggest that the reasonable time has passed.

In determining what constitutes the reasonable time, a court will have to take into account the nature of the allegations and the amount of time that is reasonably required to investigate and present the matter properly and fairly, as well as fully, to a court. This will vary from case to case. The court will also have to take into account the resources available to it to schedule cases without undue delay. No doubt when matters are being considered for listing, account will be taken of whether the accused remains in custody pending trial or otherwise. I do not think that at this stage the court should determine that this trial will not take place within a reasonable period and therefore apply the provision instanter.

These are most serious allegations, and there are suggestions that the applicant has made threats to witnesses, has access to firearms, and has contacts with others who share his desire that the Regional Assistance Mission to the Solomon Islands leave his country. The admissions he has made to the police, albeit now challenged, form a strong basis on which the charges were brought. They are strong prima facie evidence that the applicant was involved in these attempted murders. Taking that into account I have formed the view that there are substantial grounds for believing that the applicant would interfere with witnesses were he to be released on bail. For that reason he, in my view, is not entitled to be admitted to bail, the presumption in favour of bail having been rebutted.

Goldsbrough J