Alick v Regina [2006] SBHC 19; HCSI-CRC 238 of 2006 (21 June 2006)

SAMSON GAGI ALICK .V. REGINA

High Court of Solomon Islands
(Palmer CJ)

Criminal Case Number 238 of 2006

Date of Hearing: 21st June 2006
Date of Judgement: 21st June 2006

Patrick Southey for the Applicant
Henry Kausimae for the Respondent

Palmer CJ.:

1. Samson Alick ("Samson") was charged for unlawful assembly and riotous damage relating to the riots which occurred in the burning and destruction of China town on Tuesday 18 and Wednesday 19 April 2006. He was released on bail and ordered to appear at the Magistrates Court on 19th June 2006 for mention. On the said date he was asked to plead to the two charges by the presiding Magistrate. He pleaded guilty to the first charge but not guilty to the second. He was unrepresented in court at that time. The presiding Magistrate then enquired of prosecution regarding strength of the prosecution case in relation to the second charge and when told by the prosecutor that there were witnesses to the alleged offending he ordered Samson to be remanded in custody until 30th June 2006.
   
2. Learned Counsel Mr. Southey was in court at that time. He sought to intervene in court as amicus curiae on behalf of Samson and requested that the matter be listed for mention in two days on Wednesday 21st June 2006. This was refused. Mr. Southey then read the police brief and sought to be heard again on behalf of Samson but was refused. He then filed appeal to this court on 20th June 2006 against the orders of the Magistrate’s Court.
   
3. The ground of appeal in essence is that the presiding Magistrate failed to give opportunity to Samson and the Police Prosecutor to be heard regarding the issue of bail.
   

3.1 Mr. Southey relies on a decision of this Court in Mesa v. Controller of Prisons[1] in which this court had held that before any decision whether to grant or refuse bail is made, the parties must be given opportunity to be heard.

4. The issue in this case is whether the presiding Magistrate committed an error of law when he failed to give opportunity to Samson and the Police Prosecutor to be heard regarding the issue of bail.
   
5. The question of bail fell to be considered afresh before his Worship at that hearing. To that extent he was obliged to ask if bail was going to be objected or not. If he had formed a view that bail should not be granted then he was obliged to put the matter to Samson and the Police Prosecutor and in the situation where Samson was unrepresented to enquire further if he required assistance of a solicitor on the matter.
   
   • 5.1 I have had opportunity to peruse the file and records of the presiding Magistrate and confirm that there was no record which would suggest that the issue of bail was put to the parties or raised before his Worship. I am satisfied accordingly that his Worship erred in law by failing to give opportunity to Samson and the Police Prosecutor to address him on the issue of bail.
     
   • 5.2 Prior to his appearance in the court on 19th June 2006, Samson enjoyed bail and therefore unless he had been convicted and sentenced to a term of imprisonment or was in breach of his initial bail conditions or that there were/was good grounds shown why bail should be withheld, he was entitled to be released on bail. No reasons have been given which explain why bail had been refused in this instance.
     
   • 5.3 Secondly, his Worship ought to have given opportunity to Samson where he was unrepresented to instruct a solicitor to assist him in his case. In this particular instance, a lawyer, Mr. Southey, from the Public Solicitor’s Office, happened to be present in court at that time and actually offered to step in and provide assistance to Samson or the court. By refusing to permit Samson to see or talk to a lawyer on the issue of bail, he was also denied his right in law to prepare his case and to be legally represented[2].
     
   • 5.4 I note that submissions of learned Counsel, Southey that the Police Prosecutor did not object bail but also was not given opportunity to be heard at the lower court. I have had opportunity as well in this appeal to hear Mr. Kausimae Crown Counsel on behalf of the State and confirms that bail is not objected.
     
6. For those reasons the appeal should be allowed, the orders of the learned Magistrate revoked and Samson released on bail on the following conditions:
   
   • (i) That the Applicant enters into his own recognisance without sureties for the sum of $200.00 to appear at the Central Magistrates Court on Friday 30 June 2006 at 9.00 o’clock in the forenoon;
     
   • (ii) That he resides within the City Boundary;
     
   • (iii) That he does not interfere or communicate with Prosecution witnesses.
     

ORDERS OF THE COURT:

(i) Allow the Appeal.

(ii) Quash the orders of the Magistrate Court refusing bail dated 19th June 2006.

(iii) Grant bail on the following conditions:

• (a) That the Applicant enters into his own recognisance without sureties for the sum of $200.00 to appear at the Central Magistrates Court on Friday 30 June 2006 at 9.00 o’clock in the forenoon;
  
• (b) That he resides within the City Boundary;
  
• (c) That he does not interfere or communicate with Prosecution witnesses.
  

The Court.

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^[1] HCSI-CRC 128-03
^[2] see section paragraphs 10(2)(c) and (d) of the Constitution.