Regina v Bartlett [2006] SBHC 11; HCSI-CRC 194 of 2006 (23 May 2006)

HIGH COURT OF SOLOMON ISLANDS

REGINA

–V-

ALEX BARTLETT

Criminal Case No. 194 of 2006

Date of Hearing: 23rd May 2006
Date of Ruling: 23rd May 2006

Director of Public Prosecution Mr. John Cauchi for the Crown
Public Solicitor, Mr. S. Lawrence & Ms. M. Swift for the Respondent

RULING ON CROWN APPEAL

CERTIFICATE OF JUDGMENT ON APPEAL PURSUANT TO S. 295 OF THE CRIMINAL PROCEDURE CODE.

Brown, J: This petition by the Crown seeks to appeal the order of the Magistrate given on Friday last the 19th of May 2006 granting the respondent Mr. Bartlett bail following charges of arson (2) and inciting riot arising out of the events of 18 April and subsequently in Honiara. The Director of Public Prosecutions is, in the terms of s. 283 of the Criminal Procedures Code 'dissatisfied' with the Magistrates order for the following reasons:

(1) Firstly he says that the learned Magistrates erred in allowing bail;

(2) Secondly that the Magistrate by finding that there was a substantial ground to refuse bail; 'interfering with witnesses' erred by then granting bail;

(3) Thirdly the magistrate erred in giving consideration and weight to matters of delay which were not applicable to the 2006 charges of arson and inciting a riot;

(4) Fourthly the Magistrate failed to consider the evidence of Dr. Pat. Ingram as to the current health of the respondent;

(5) And lastly the Magistrate erred by only considering the issue as to the presumption of innocence.

I should say at the outset that whether or not the court refuses a predominate right to bail lies in the discretion of the court a discretion to be exercised on particular principles. The predominant right has been the subject of much judicial expression. As a consequence it is often easier to point to matters which weigh heavily against the enshrined presumption in favour of bail.

Mr. Cauchi has, in his petition pointed to some matters which are relevant when considering the exercise of discretion and which he says illustrate mistakes by the magistrate, mistakes that this court should correct.

The first ground is but a summation of his argument in the remaining grounds.

The second ground argued by Mr. Cauchi rested to a large extent on the magistrate’s apparent assertion in his reasons 'that it is a likelihood if the accused is allowed on bail (he) might interfere with crown witnesses'. Mr. Cauchi pointed to the carefully elicited references to the manner of behaviour of Mr. Bartlett, when he was in the throes of being charged by Detective Sergeant KODO, to support this likelihood. That behaviour is detailed by the Participating Police Force Adviser who recounted at paragraph 18 of his affidavit.

'I have witnessed the applicant attempt to influence witnesses in relation to these current charges. At the time of being placed under arrest the applicants spoke at length to Mr. Detective Sergeant Kodo and Detective Constable Josephine Bata. This included 'you should not arrest me, you are making a mistake, we are both Solomon Islanders, you should not listen to the aliens (RAMSI) who have come into this country with their own agenda, don’t listen to these foreigners who are poisoning our people, turning us against each other'. As a direct result of the applicant’s speech to the arresting officers, Detective Sergeant KODO stopped reading the applicants charges out and looked at me a number of times. I had to prompt Detective Sergeant KODO to continue. This was in the presence of the applicant’s solicitor who advised the applicant to stop talking.'

Mr. Lawrence points to the Crown reliance on this particular evidence as the flaw on which this ground must fail, for whilst Mr. Bartlett’s behaviour may be explainable as an emotional reaction to the charges, it cannot go to satisfy the magistrate or this court of the assertion of the Crown, a real risk to witnesses. This argument has merit, Mr. Bartlett has not been shown to have influenced witnesses to these fresh charges (for he faces many others, on which he previously obtained bail) but rather it is the fact of a presumption of a risk to witness in this particular Advisor’s mind, in the light of Detective Sergeant KODO’S reaction to Mr. Bartlett’s outburst on which the Crown seeks to rely.

Obviously that behaviour was not so determinative of a risk to witness in the magistrates mind for while he alluded to the risk of interfering with witnesses, he did not seek to refuse bail on that basis. Having appreciated the continuing risk (for he appears to have adopted the reasoning about risk of my brother judge, Justice Kabui in Mr. Bartlett’s successful bail application on the point), the magistrate nevertheless did not see fit to refuse bail. The Crown argument in the absence of evidence of interference must fail on that ground.

Of course the issue really is the potential to interfere and that issue was touched on, if obliquely by the former Chief Justice, Justice Muria in Perfili’s case, also referred to by the Magistrate as supportive of his reasoning on risk.

Chief Justice Muria said, while dealing with the interests of justice in permitting unfettered investigation, 'no possibility of interference is permitted'; of course that is an absolute and the law is not so much about absolutes as balance. Witnesses veracity or otherwise will one day be tested under cross-examination in court. Their protection from interference now and in the time leading up to that court appearance is, in this climate, one of utmost importance and that is clearly recognized by the police briefs careful erasure of detail to avoid disclosure of the identity of particular witnesses, for 'tambu', tribal and clan affiliations and overarching regional mores come into play when they clash with the criminal law system adopted, modified and applied in the Solomon Islands in accordance with the Constitution. I am not satisfied the Magistrate has not intuitively taken these matters into account when he has carefully written reasons acknowledging the possibility of risk to witnesses but nevertheless has allowed bail. The potential remains and must be managed but in the absence of specific incidences, has not affected the balance to an extent to out-way the right to bail.

The third ground relates to delay. Clearly these are fresh charges and with the trial dates in September fixed for those earlier charges, the magistrates was faced with what he perhaps saw as a finite time to a trial, which, coupled with other matters, did not in his view debar the applicant from bail on these charges. There is no way of knowing when these particular charges will come to trial but since bail was granted I am minded to accept that the magistrate has allowed the 5 month period of which he speaks, as that period to trial, so that delay in the sense that Mr. Bartlett has been incarcerated for quite some time and may expect to remain incarcerated for an indeterminate future time does not arise. I see no error in the magistrate's comments about delay for it really doesn’t arise in these circumstances.

The 4th ground relates to Mr. Bartlett’s health. His current health is clearly good. The magistrate does not appear to have addressed Dr. Ingram’s report. Mr. Bartlett had been on bail until rearrested on the 12 May 2006. The doctor has given her opinion that his health is not a determinative factor (since it is good) in any further incarceration in jail awaiting trial, provided his diet can be controlled. The prison can do that and thus there is no impediment to his further incarceration. Mr. Cauchi argues that the magistrate has failed to properly consider the doctor’s report. The flaw in the Crown argument is that it presupposes incarceration. The magistrate has accepted there is no present health problem but that if sent back to jail a problem may arise so to that extent his acceptance of a risk has been treated as a factor favourable to Mr. Bartlett’s continued release on bail. That is certainly open to the magistrate on the medical evidence.

The last ground is stated thus:

'Erred by only considering the issue as to the presumption of innocence alone'

There was much argument but the flaw, Mr. Lawrence says, in the Crowns case was that the magistrate touched on so many other relevant issues going to the question of the exercise of his discretion to refuse bail that he must be presumed to have taken them all into account on the balance. I am so minded; I agree.

The fact that these charges are of like type to those earlier charges (which included arson and procuring an offence, arson) was before the magistrate, for he relied on Kabui J.’s reasons when addressing the health issue. Yet he was not moved to refuse bail.

On balance I am satisfied the magistrate has addressed the material principles affecting the exercise of a discretion to refuse bail.

His conclusions were open to him. His discretion is largely unfettered provided he has not been shown to have taking into account matters irrelevant to the bail investigation. That was not the case here.

The very seriousness of the effects of the fires about Honiara on 18/19 April, involving as they did so many people of all persuasions behaving badly will come under scrutiny when Mr. Bartlett comes to his trial on these offences. So far as this appeal is concerned, I am not satisfied that the magistrate's findings warrant interference by me on this question of bail. And there is in place a most material safeguard to ensure compliance with the bail conditions. His bail guarantee of $10,000.00 risks forfeiture in the event of breach of any condition

BY THE COURT