Bartlett v Regina [2006] SBHC 4; HCSI-CRC 022 of 2006 (17 February 2006)

HIGH COURT OF SOLOMON ISLANDS.

Criminal Case No. 22 OF 2006.

ALEX BARTLETT

V.

REGINA

(KABUI, J.).

Date of Hearing: 13 and 14, February, 2006.
Date of Ruling: 17^th February 2006.

P. Bannister for the Crown.
S. Lawrence for the Applicant.

RULING

Kabui, J.: This is a bail application. Any bail application is about freedom from detention. Freedom from detention is a constitutional right- that being a freedom of personal liberty. It is a right that can however be denied by the courts in certain circumstances. The circumstances in which a person may be denied his or her freedom of liberty are set out in section 5(1) of the Constitution. The right to freedom is therefore not an absolute right. It is a right that is qualified by exceptions. Any application for bail is a relief that is available only to accused persons who have been charged with serious offences and are remanded in custody by the court awaiting trial. The granting or otherwise of that relief depends upon the discretion of the court based upon the evidence before it. There can be more than one application for bail as a matter of practice though there are of course limitations. The present application for bail is the fourth one brought on behalf of Mr. Bartlett since he was arrested on 2^nd September 2004. He is a business man and a long time resident in Honiara.

The first bail application on 8^th September 2004 was in relation to the following offences-

1. Demanding money with menaces, contrary to section 294 of the Penal Code;
   
2. False pretences, contrary to section 308 of the Penal Code;
   
3. Procuring an offence (arson), contrary to section 381 of the Penal Code;
   
4. Arson, contrary to section 381 of the Penal Code;
   
5. Possession of firearms, contrary to section 5(2) of the Firearms and Ammunition Act.
   

The bail application was refused by the High Court on the ground that he was capable of interfering with witnesses. His appeal from the refusal of bail by the High Court to the Court of Appeal was also refused.

He was again charged with two additional offences on 4^th March 2005. The offences were demanding money with menaces, contrary to section 294 and receiving stolen property, contrary to section 313 both of the Penal Code.

The second bail application was filed on 27^th August 2005 and was granted by the High Court. However, on 30^th August 2005, he was charged with further additional offences being demanding money with menaces, contrary to section 294, demanding property on forged documents, contrary to section 345(b), forgery of certain documents with intent to defraud contrary to 336 and intimidation, contrary to section 231 all of the Penal Code.

He was remanded in custody by the Magistrate on these additional charges. The third application for bail on 31^st August 2005 was refused by the High Court on 21^st September 2005 on the ground that there was a risk of interfering with witnesses.

The usual arguments in bail applications such as the serious nature of the offences, the strength of the Crown case, the risk of flight, family circumstances and interference with witnesses had been exhausted in the three previous bail applications. They have been repeated in this application to some extent. In other words, the position remains that the public interest still far outweighs the personal liberty of Mr. Bartlett. This means that Mr. Bartlett remains in custody until his trial. It is this continuing detention that he does not like and thus this application for bail application, the fourth time. He has been in detention for seventeen months since the date of his arrest and detention in September, 2004 as the combined effect of all the charges laid against him at different times.

Multiple bail applications by the same accused person.

The rule of practice is that I cannot re-open the findings in the three previous bail applications unless by way of an appeal which in this jurisdiction is not one that is available to an accused whose bail application had been refused by the High Court (See R .Bartlett Alex, Appeal No. 20 of 2004). There are however two exceptions to this rule of practice. First is that a subsequent bail application may raise matters of fact that had been omitted in a previous bail application. Second is where new facts have caused changed circumstances to occur so that a fresh bail application is justified. (See R. v. Nottingham Justices ex parte Davies [1981] Q.B. 38).

The justification for this fresh application for bail.

There are four matters which Counsel for Mr. Bartlett said did constitute changed circumstances or new considerations as the justification for this bail application. The first is that the charges against him in respect of which he applied for bail and was refused by Goldsbrough, J. had not been attended to by the Crown. That is, his case in respect of those charges had not yet gone through the Magistrate Court for committal and since those charges were laid on 14^th July 2005 and also three months had lapsed since his bail was refused. The Crown in response said that the case would be put before the Magistrate’s Court on 15^th February 2006, the next day after the hearing of this application.

Secondly, five months had lapsed since the third application for bail had been determined by Goldsbrough, J. In response, the Crown said that such a delay was negligible in the circumstances of the case against Mr. Bartlett. In fact, a date had been set in September in 2006 for the first trial to commence.

Thirdly, Mr. Bartlett had not been well in custody in terms of his general health condition. Dr. Apia had seen him twice in the Rove Prison and made two reports which were tendered in Court as Exhibits 1 and 2. The clinical notes made and kept in the Rove Prison Clinic were also tendered to supplement the reports made by Dr. Apia. The Crown’s case is that Mr. Bartlett’s complaints about his health had been adequately attended to and there was no basis for any alarm and that any future need for further medical attention would be likewise dealt with adequately.

Fourthly, the risk of interference with witnesses had diminished with time. The case for the Crown was that the risk in that regard was always real and alive in this case and would oppose any suggestion to the contrary.

In general terms, the Crown had argued that there had been no change in the circumstances in this case nor had there been any new considerations for the Court to take into account, thus affirming the present position of Mr. Bartlett in custody and demanded that this application be dismissed.

Are there changed circumstances or new considerations in this application?

I will now discuss and then consider the matters raised by Counsel for Mr. Bartlett as amounting to a change in circumstances or being new considerations or arguments.

Firstly, the delay in the progress of the case against Bartlett regarding the third group of charges in the Magistrate Court is indeed a concern because the longer it takes for the Crown to move the case forward in the Magistrate Court, the longer Mr. Bartlett remains in custody rather unnecessarily. The assurance the Crown gave at the hearing of this application that the committing hearing in the Magistrate Court was imminent was rather a reactionary response than the normal diligent and conscientious practice by the Crown. The Crown had not explained this delay in this respect. I do not however think this fact would constitute a changed circumstance nor can it be regarded as a new consideration. It would have been different if this application should come after committal because by then the Crown would have been in possession of all the witness statements and there would be the opportunity for a full review of any previous bail applications. There would have been a change of circumstance in that situation but not in this case. (See R. v. Crown Court at Reading, ex parte Malik and another [1981] 1 All E.R. 249).

Secondly, the lapse of five months since the third bail application had been refused by Goldsbrough, J. does raise the same issue of delay in this case. It is allied to the first argument. This cannot be a changed circumstance or a new consideration. That is, the passage of time in detention since remand cannot qualify as changed circumstance or new consideration justifying a further bail application. (See page 452 in Emmins on CRIMINAL PROCEDURE, by JOHN SPRACK, Fifth Edition 1992).

Thirdly, the issue of Mr. Bartlett’s medical condition in detention is obviously a changed circumstance or a new consideration in this application. It is so because it was not an issue in the three previous bail applications. It had not been ruled upon in those bail applications although his family circumstances in general might have been put forward by his Counsel at the relevant time.

The evidence is that Mr. Bartlett had attended the Rove Prison Clinic for inmates as far back as in May, 2005. He had complained of headache, dizziness, food poisoning, loss of appetite and generalized body weakness and ache. He had been given medication for these complaints. On 8^th December 2005, Dr. Apia from the Honiara Town Council Clinics attended Mr. Bartlett in the Rove Prison and made a report on his medical condition at that time. After ascertaining Mr. Bartlett’s medical history and examining him, Dr. Apia concluded that Mr. Bartlett was suffering from post traumatic stress syndrome with anxiety. He had high blood pressure, moderate pneumonia and malnutrition secondary to the post traumatic stress syndrome. Dr. Apia stated that Mr. Bartlett was taking medication for his conditions. He stated that Mr. Bartlett would need counseling, reassurance and recommended that Mr. Bartlett would need vegetables and vitamin supply.

Dr. Apia at the end of his report said-

“With aging and in an isolation prison plus his bad medical histories of severe essential hypertension, PTTS, Candiasis episodes, I strongly recommend that he be discharge from Prison so that he can rehabilitation with family members, regularly take his medications and regular medical reviews.

Otherwise, he is highly susceptible to recurrent infection that leads to Cryptococal meningitis (severe infection of candida to brain covering-meninges), schizophrenic (irreversible psychotic disorder or severe malnutrition that can cause his life.

With these very reasons, I advice him to regularly take his medications and to be positive in life.”

Dr. Apia again visited Mr. Bartlett on 8^th February 2006. This time Dr. Apia found that Mr. Bartlett had improved although he had lost weight. However, he was still suffering from stress and anxiety and essential hypertension. Dr. Apia advised that Mr. Bartlett avoid cooked processed food, continue with his medication, be provided with vegetables and local food and be discharged from prison.

Again, Dr. Apia at the end of his report said-

“I strongly recommended him to have monthly reviews and hence, reminded the Prison management the possibility of the patient can have a stroke or have Acute myocardial infarction if no medication because of high blood pressure or counselling.”

The Prison Authorities had taken steps to improve the diet for Mr. Bartlett whilst at the same time the Prison Regulations do provide access for further treatment in the Central Hospital if the need arises. In other words, there is no cause for alarm in that regard from the view point of the Prison Authorities.

Fourthly, the diminishing risk of interfering with witnesses due to passage of time may well be a changed circumstance or a new consideration or argument. Counsel argued that time had passed and the relevance of the risk factor had diminished with time since the contact with Ledi who was himself in custody for offences he committed. Counsel further argued that the issue had also been visited in the three previous bail applications with Naqiolevu, J. granting the bail application with conditions. That is, Mr. Bartlett has now realized that his present detention has a direct link to his previous contact with witnesses though he denied the allegation. With lapse of time, that factor has faded in significance.

The refusal of bail by Brown, J. and Goldsbrough, J. bears witness to the fact that Mr. Bartlett has been detained in the Rove Prison for the last seventeen months principally on the ground of risk of interfering with witnesses. Surely, Mr. Bartlett would not like to make this same mistake this time if he valued his freedom from detention. One view is that-

“..previous objections to bail ( such as possible interference with prosecution witnesses or further police enquiries) may well be of less validity now that the prosecution case has been crystallized by the exercise of preparing for committal” (Also see page 452 cited above).

In this case, the committal may have already begun in the Magistrate Court this week as intimated by the Crown at the hearing of this application. The Crown’s case is now complete in terms of collection of evidence. I have come to the conclusion on this point that it is a new point for consideration by this Court.

The consideration of the changed circumstances in this application.

The view taken by Blackstone’s CRIMINAL PRACTICE, 2005 at 1228 is that it is artificial to consider the changed circumstances or new considerations or arguments in isolation of the old circumstances in previous bail applications. That is, it is better to rely on both the new and old arguments. This view seems to run counter to the view expressed in the Davies case cited above. That is, it is not right to re-open the previous bail applications as the principle of re judicata would seem to be applicable. I do not think the principle in Davies’ case cited above would be a bar to my consideration of the matters raised in this application for they are new matters for consideration. The matter of Mr. Bartlett’s medical condition is completely new and the risk of interference with witnesses has come back in a different context. That is, the passage of time has reduced the risk of interference with witnesses.

The status of Mr. Bartlett in the Rove Prison.

Mr. Bartlett is an unconvicted prisoner. He is innocent until proven guilty in a court of law. He is being held in detention because of the risk that if he is let out he may interfere with witnesses. There are of course other grounds for his detention but interfering with witnesses is the main one for bail being refused by Goldsbrough, J.

What then is the effect of the changed circumstances or new considerations on this application?

The list of factors that may be advanced by an accused to secure the granting of bail is not exhaustive. The medical condition of the accused is clearly one of them. That clearly is an aspect of the personal circumstances of the accused. As I have said, this point had not been raised and considered in the three previous bail applications.

Mr. Bartlett is fifty-three years old. That is what Dr. Apia referred to in his first report as Mr. Bartlett was aging. The high blood pressure is still not under control. This is dangerous because stress and anxiety may sustain the present level of high blood pressure or may increase it. No one knows. The danger is however there. This is the recipe for heart illness. This is the context in which Dr. Apia spoke about counselling and reassurance in his reports. There is no evidence that the Rove Prison does have a counselling service. The medical condition of Mr. Bartlett is therefore not a fabrication. There is no suggestion that Dr. Apia was lying in his evidence. Whilst the Crown had said that any one who was detained by the Police pending trial would suffer from anxiety as a matter of logic, medical evidence may rebut that and say the threshold has been exceeded and something has to be done.

In his affidavit filed on 26^th January 2006, Mr. Bartlett says that the fact of his detention has had a deteriorating effect on his personal health. He says the very strict regime in the Prison which deprives remand privileges does contribute to his current state of health. This is confirmed by his wife in her affidavit filed on 8^th February 2006. She says family visits have been restricted and she has not been allowed to deliver food to her husband. Obviously, any further delay in his trial whilst in custody may likely to further affect his health in a negative way. That is, any further detention will be counter productive to his health.

Detention for the last seventeen months without trial is a long time. There is no absolute guarantee that his first trial will commence in September, 2006. It depends on how long the current trials will take to conclude and whether counsel on both sides will be ready at that time to facilitate his trial. Even if his first trial commences on time, it may be adjourned to another date. No one knows how his health will be like by that time. It is risky to think that he will be completely cured of his current health condition by September, 2006.

The counter argument is that the risk of interfering with witnesses must not be forgotten. There may well be the argument that Mr. Bartlett, if released, may interfere with the cause of justice by speaking again either directly or indirectly with those who have been identified as Crown witnesses. It would be foolhardy and unwise for Mr. Bartlett to even contemplate that course of action on his part for his personal liberty is his fundamental right which he does not like to be taken away.

The Crown had argued that there could be additional witnesses to be called during the course of his trial. I do not accept that argument because to accept it will simply guarantee the long detention of Mr. Bartlett for the trial date of his first trial has not been fixed with any absolute certainty. The fear of interfering with witnesses yet to be identified and known at a later unspecified date is but speculative and far too remote a possibility. I will not allow that argument to stand in the way of Mr. Bartlett’s right to freedom from detention.

Conclusion.

I am aware that Mr. Bartlett had been described by the Police as the former Secretary-General of the MEF and even as the Godfather of sorts and a highly dangerous man to release back into the community. It is common knowledge that the MEF had been long disbanded soon after the signing of the Townsville Peace Agreement. I do not think Mr. Bartlett is still able to possess the influence that he once had, if any, after the arrival of RAMSI and much less after his experience in detention. I do not think the perception of the Police of Mr. Bartlett is enough to persuade me to deny him bail.

The health condition of Mr. Bartlett dictates that he should be released. That however has to be balanced with the need to ensure that he does not interfere with witnesses on being released from detention. On balance, I think I should release Mr. Bartlett from detention with conditions. I order that Mr. Bartlett be released on bail at the rising of this Court with the following conditions. That is to say that he must-

1. Reside with his family at his home at Leggakiki in Honiara.
2. Report to the Central Police Station every Friday of every week before 4pm.
3. Surrender his passport to the Registrar of the High Court by 4pm this afternoon.
4. Not to leave Honiara without the consent of the High Court.
5. Not to contact any Crown witness or potential Crown witness either directly or indirectly except through his Solicitor.
6. Not to contact or associate with any co-accused.
7. Attend his trial on the date to be fixed.
   

The above are the conditions of the above order of the court until further orders.

Mr. Bartlett had indicated through his Counsel that he was prepared to put up $100,000.00 cash in court and to surrender the title to his family home in Honiara conditions for his bail. I think it is unnecessary to do this in this case. I do not believe Mr. Bartlett will abscond. He is man enough to stand up and face the charges against him. I think conditions 1, 2, 3 and 4 above are enough to ensure that he attends his trial when he is called upon to do so. He is still innocent until proven guilty. He has agreed by his affidavit that he would abide by any bail conditions that may be imposed by this Court.

The bail application is granted.

F.O.Kabui, J.