Nokia v Regina [2006] SBHC 70; HCSI-CRC 588 of 2004 (31 October 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 588 of 2004

CECIL NOKIA, TITUS MAINA, SILAS FAKANI & JOHN MAGA

-v-

REGINA

(Naqiolevu, J)

Date of Hearing: 28th August, 4th October 2006
Date of Ruling: 31st October 2006

For Second Accused: Mr C Baker
For Third Accused: Mr H Barklay
For Crown: Mr N. Mirou

RULING

Naqiolevu J. The accused are charged with the offence of Abduction contrary to Section 251 of the Penal CODE and Murder contrary to Sections 200 of the Penal CODE.

1. The offence of Murder against the first Accused was subsequently withdrawn by the crown.
   
2. The First and Fourth accused however seek to enter a plea of guilty and their case was dealt with separately.
   

DEFENCE APPLICATION

3. The defence however at the commencement of the trial ask the court to consider some pretrial issues prior to the Second and Third accused being formally arraigned.
   
4. The application by the second and third accused essentially is for the court to consider the preliminary issue that the charges against them is statute barred, given they are immuned from prosecution under the Amnesty Act.
   

5. Counsel argue as a matter of procedure the court may without proceeding to have the accused arraigned, deal with the preliminary point by hearing evidence and if it finds that the Amnesty Act applies to the accused, the court may dispose with the matter as appropriate.

6. Counsel ask the court to consider there is authority for this proposition and cited the High Court of Fiji case of, The STATE-v-Ratu Timoci Silatolu and Josefa Nata (^[1]). The court in considering a similar issue rule that as a matter of procedure it may proceed to hear the application prior to the taking of the plea.
   

CROWN’S SUBMISSION

7. The crown in response argue the court should allow the trial to proceed and ascertain on the evidence whether or not this case falls within the amnesty claimed. In order to have the benefit of the Amnesty, it first must be established beyond reasonable doubt or admitted by the accused that the offence was committed, otherwise there is no basis to have the immunity or amnesty. Counsel argue it is a pre condition to having the immunity or amnesty as there is nothing to grant the relief sought.

8. Counsel for the crown further argue that this case amount to an ordinary abduction, and cannot be said to be in respect of criminal acts committed in the execution or purported execution of the requirements of sub section (a) (b) or (c) of Sections 3 (2) of the Amnesty Act.

9. Counsel argue the action of the accused on that particular day was the commission of a criminal act contrary to the Penal CODE.

PLEA OF PARDON

10. The applicants are accused persons against whom an information has been filed alleging they committed the crime of abduction. However pursuant to Section 255 of the Criminal Procedure CODE, they have the right before being required to plead to the information, to enter a plea of autrefois acquit or autrefois convict or pardon.

11. I accept the correct procedure as enunciated by Wilson J in The State-v-Ratu T Silotau and Nata, where His Lordship said

"Each applicant is an accused person against whom an information has been filed alleging that he has been filed alleging that he committed the crime of treason. Pursuant to Section 279 of the Criminal Procedure CODE, the applicants have the right, before being required to plead to the information in the ordinary way to enter a plea of autrefois acquit or autrefois convict or pardon" The Judge continued

and said "The word "pardon" has a wide meaning and it includes immunity, amnesty, indemnity and like aspects of what used to be known as the prerogative".

The court further said,

"If the Immunity Decree is valid, it will mean that each applicant, although may have taken part in the unlawful takeover of the Government. ......................................................

"will inter alia be immune from prosecutions under the Penal CODE or the breach of any law in Fiji. It will also mean that each applicant could expect to be discharged from the information and to have his freedom".

"If on the other hand each applicant fails, then it will mean that each applicant as a matter of procedure, be required to plead to the information (Section 279) and, if he pleads not quilty, he will face the prospect of his trial proceeding"

Section 279 of the Criminal Procedure CODE of Fiji, mirrors Section 255 of the Criminal Procedure CODE of the Solomon Islands.

12. I accept the courts view that the word "pardon" has a wide meaning and it includes immunity, and amnesty in these circumstance.

13. Having considered the authority of The State –v- Ratu T. Silotau & J Nata, I adopt the general principle of law and order the court will proceed and hear evidence as to whether the Provision of the Amnesty Act apply.

14. I am of the opinion that the question essentially for this court to consider, does the Amnesty Act apply to the accused in this instance.

15. The purpose of the Amnesty Act as expressed in the preamble is to provide amnesty or immunity from Criminal Prosecution to militants of the MEF, the IFM and member of the Police Forces and Prison Service Leaders and other civil advisors who join and participated in the operations which occurred on the 5th of June 2000.
    

16. The Amnesty Act clearly mirrors the Townsville Peace Agreement(^[2]), the agreement which all the parties to the conflict at the time had agreed in principle to bring a successful end to the tension, lawlessness and the killing which plagued the country at the time.

THE LAW

17. The Amnesty Act under Section 3, Sub Sections (1) a, b, c, d (2), (3) (4) clearly spell out the conditions under which the amnesty or immunity maybe available to those seeking to avail themselves of the provision:

1. Amnesty Act, 2000

(1) Amnesty or Immunity from Criminal Prosecution

Notwithstanding any provisions of the Penal Code or any other law, the following persons shall be granted an amnesty or immunity from criminal prosecution as hereinafter provided:

(a) leaders, members and other advisors associated with the Malaita Eagle Force;

a. members of the Solomon Islands Police Force;

b. leaders, members and other civilian advisors associated with the Isatambu Freedom Movement: and

(b) members of the Solomon Islands Prison Service.

(2) Subject to the provisions of subsection 4, the amnesty or immunity from criminal prosecution referred to in subsection (1), shall be in respect of any criminal acts committed in the execution or purported execution by any person -

(a) of the Isatambu Freedom Movement in connection or in association with the forceful eviction from the Province of Guadalcanal of certain persons during the period commencing 1st January 1998, and ending 15th October 2000 in furtherance of the demands of the indigenous people of Guadalcanal;

(b) of the Malaita Eagle Force, in retaliation against the forceful eviction of Malaitans from Guadalcanal; and

(c) in execution or purported execution of the para-military operations conducted on the 5th day of June 2000, and the joint para-military/Malaita Eagle Force security operations carried on thereafter, until the signing of the Townsville Peace Agreement on 15th October 2000.

(3) The amnesty or immunity from prosecution referred to in this section shall be on condition that all weapons and ammunition and stolen property in possession and in the custody of the militant groups referred to in subsection (2) are surrendered and returned in the manner and within the periods specified in the Townsville Peace Agreement or such other date the Minister may specify by Notice published in the Gazette.

(4) In this section "criminal acts" mean unlawful acts which are directly connected with matters specified in subsection (2) and in particular -

(a) offences relating to arms and ammunition;

(b) killing or wounding in combat conditions or in connection with the armed conflict on Guadalcanal;

(c) damage done or loss caused to any property during or in connection with military or security operations.

(d) any traffic offences committed during or in connection with military or security operations

(5) The amnesty or immunity referred to in this section does not apply to any criminal acts done in violation of international humanitarian laws, human rights violations or abuses or which have no direct connection with the circumstances referred to in subsection (2)(a), (b) or (c) of this section.

2. Constitution (Amendment) Act 2001

The Constitution (Amendment) Act 2001 was passed by Parliament on the 5th of April 2001 and provided for an amnesty immunity or pardon for certain persons who might otherwise have been liable to criminal prosecution for certain acts done during the period 1st July 1998 to the 15th of October 2000.

The provisions further acknowledge the power of the DPP provision to section a) (4) and a) (5) and therefore granted as amnesty or immunity from criminal prosecution to persons including leaders, members and civilians, advisers, associates in MEF and officers of the RSIP and Prison Service. The acts must be acts done in connection with the armed conflict on Guadalcanal.

Clearly the Constitution Amendment Act compliment the provision of the Amnesty Act.

18. The act sets out the categories of persons who may claim immunity from criminal prosecutions. The specific criminal act which the category of persons committed and the purpose. The condition in which the amnesty or immunity will apply and the criminal act that is specifically excluded for no direct connection to the instance abovementioned.

19. The offence committed by the accused relate to the abduction of the victim by a group of men, in order to question him on his involvement with IFM. This was alleged by the crown as the reason for the victim’s abduction and the purpose, his suspected association with Harold Keke the leader of IFM.

20. The court is of the view that the offence of abduction was clearly an unlawful act which come within the provision of Section 4 of the Amnesty Act, and more particularly, was in connection with the retaliation to the forceful eviction of the MEF from Guadalcanal Section 2 (b).

21. I am of the opinion that Section 4 must be read with Sections 2 (a) (b) and (c) of the Amnesty Act. Further it is conditional on the fulfillment of Section 3, failure of which will not entitle a person to amnesty or immunity under the act.

22. The accused as clear from the Record of Interview and that by the crown is a member of the MEF. It is indeed with the group of MEF on the day in question is clear and I find that the accused come with the definition of the members of the MEF under Section 1 (a) of the Amnesty Act.
    

23. The important that the Amnesty or immunity is conditional on the return of the weapons in the possession of the members of the group. This is clearly an involvement consideration ensuring the danger of the weapons being available and being used to contribute to the violence and the killing that was evident at the time.

24. The question that has to be determined is, have the accused returned the weapons in their possession at the appropriate time? and within the period specified by the provisions of the act, and through the subsequent notice. (^[3])

25. The accused tendered in court certificate signed by the Minister (^[4]) attesting (^[5]) to the fact they have returned the weapons and the date of surrender. The certificate was accompanied with a list of MEF(^[6]) members who surrendered the weapons at Auki Police Station. This is further confirmed by a letter from the secretary of the National Peace Council dated the 2nd of October 2006 (^[7])

26. The further questions that need to be determined is, must all the weapons only in the possession of the groups of IFM, MEF and the Solomon Islands Police, and officers of the Prison Service, or does the act in general terms include surrender of weapons by individual members of the group.

27. The preamble of the Amnesty Act defines the ACT, "As an Act to make provision for the granting of an amnesty or immunity to "members" of the specific groups, MEF, IFM and the SIP and Prison Service. It can be determine from the preamble that the legislation, personalize the amnesty by nominating "members" and not just referring to each group by names.

28. This individualizing of the groups is made clear by the Attorney General(^[8]) in his speech during the process of debating the act in Parliament. The Attorney General illustrates when an individual member of the recommended organization might be isolated from the amnesty. This clearly demonstrates that the legislation is related to individual not a group.

29. The provision of section 6 of the Amnesty Act Sub-Section (b) and (c) further confirms this proposition by defining persons who should be excluded from the provision of the act. The provision define person as individuals and not group to characterise membership of the groups.
    

30. I find that the legislation in general terms refers to the respective groups collectively, isolate the individual and allows those that fit within the categories and further comply with the requirements of the act, to be entitled to the amnesty.

31. I am of the opinion that the two accused come within the ambit of the Amnesty Act. They have fulfilled all the criteria of the act and therefore are immuned from prosecution.

32. I consider however before I may make appropriate order the accused are required to make formal admissions as to their involvement in the commission of the offence.

33. Having satisfied myself the accused have formally admitted the offence, I order the accused be discharged from the proceedings as they have fulfilled the requirement of the Amnesty Act.
    

ORDER:

THE ACCUSED ARE HEREBY DISCHARGED FROM THESE PROCEEDINGS.

THE COURT

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^[1] CA No. HAM 008 – HAM 010 of 2002
^[2] An Agreement for the cessation of hostilities between MEF, IFM, SIG and
Registration of Peace and Ethnic harmony – 15^th October 2000.
^[3] Weapons and Stolen Property Surrender Notice 2003
^[4] Certificate of Surrender of Firearms No. 0186. John Maga
^[5] Certificate of Surrender of Firearms No. 0054. Inspector Nokia
^[6] Wolf Camp-MEF Surrender Weapons at Auki Police Station 15-12-00
^[7] Nathaniel Supa, Secretary NPC
^[8] Paliament Hansard 18^th December 2000