Siraoa v Regina [2007] SBHC 18; HCSI-CRC 333 of 2006 (25 April 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 333 of 2006

BETWEEN:

JIMMY SIRAOA, MOSES SU’U, JOHN TOLI,
HENRY DODO & ENOCH FISU
Appellants

AND:

REGINA
Respondent

Date of Hearing: 13 April 2007
Date of Judgment: 25 April 2007

Mr Mirou and Mr McConaghy for the Crown
Mr Cavanagh for Mr Su’u
Ms Faasau for Mr Dodo and Mr Siraoa
Mr Savu for Mr Fisu and Mr Toli

JUDGMENT

Cameron PJ

Introduction

1	This is a bail application by 5 accused charged with murder.
2	It is alleged by the Crown that on 23 September 2000 the 5 accused, part of a larger armed group of men, shot and killed the victim Francis Sale.
3	It is alleged that this occurred near Kaimosa Village, Guadalcanal. It is said that the accused were members of the Malaita Eagle Force and on patrol at that time.
4	It is said that the victim was cooking food and singing with friends at the time he was ambushed and killed.
5	The charges which resulted against these 5 accused included charges of attempted murder in respect of the friends of Francis Sale, who were also fired upon but not killed. Application for Amnesty
6	All the accused applied for immunity from prosecution under the Amnesty Act 2000.
7	That application was heard by this Court over a period of 17 days, during which evidence was heard, and a decision by this Court was given on 1 March 2007.
8	In that decision, this Court granted the accused immunity from prosecution on the attempted murder charges, but declined to grant immunity on the murder charges.
9	Accordingly, the accused await trial by this Court on the murder charges. A trial date commencing 30 April 2007 has been scheduled, but it is not entirely clear whether the trial will be able to proceed on that date. Grounds of the Bail Application
10	The principal ground advanced was that the decision of this Court not to grant immunity from prosecution on the murder charges was wrong; that it was therefore likely that even if convicted of murder at trial, the decision on immunity would be subsequently over-turned by the Court of Appeal and immunity retrospectively granted and acquittals entered; that the likelihood of that happening ought to be recognised now, and constituted an exceptional circumstance justifying the immediate granting of bail to all of the accused.
11	The defence submits that on its face the decision of this Court declining to grant immunity on the murder charges is clearly wrong.
12	It contends that the Court having been satisfied that the circumstances surrounding the killing fell within the ambit of the Amnesty Act such that immunity on the attempted murder charges was appropriate, for consistency it followed that those same background circumstances necessitated a finding of immunity on the murder charges.
13	It says that this Court was wrong to treat the murder charges as distinct and to rule that the killing was in breach of human rights and therefore not protected by the Amnesty Act. It says that this overlooks that the definition of "criminal acts" which fall within the ambit of the Act include "killing or wounding in combat conditions or in connection with the armed conflict on Guadalcanal".
14	In other words, the defence argues that the flaw in the decision is to treat a killing as itself a breach of human rights without more.
15	The Crown counters not by challenging specifically the defence argument, but by looking at the wider context of the amnesty decision. It says that were the Court of Appeal to analyse the decision then the entire factual foundation as established by the evidence, and the findings which flowed from that, would be under scrutiny, as well as the approach taken in construing the various sections of the Act.
16	More specifically the Crown says that to establish whether the exclusion for human rights violations applies to this particular killing, it was first necessary for there to be factual findings on the question of whether the killing was lawful under international law. The Crown says that, for example, the victim has to be an enemy combatant before the killing can be sanctioned under the Act. It points out that in the decision there is no finding that the victim Francis Sale or his friends were part of the Isatambu Freedom Movement (IFM) and therefore no finding that they were enemy combatants.
17	The Crown therefore says that the decision is flawed in not containing the factual findings necessary for a proper consideration as to whether amnesty should apply in the circumstances. It says that unless and until the Court of Appeal turns its mind to this, it cannot be said that the decision not to grant the accused immunity for the murder charges was wrong.
18	The Crown therefore says that exceptional circumstances such that would justify the granting of bail in a murder case have not been made out.
	Conclusion
19	I agree with the Crown’s submissions.
20	It cannot be said at this stage that this Court’s decision declining immunity from prosecution on the murder charges is likely to be overturned.
21	If the decision reaches the Court of Appeal, then no doubt the matter will be considered against the whole of the evidence presented over many days in this Court.
22	I am not being asked to, and nor would it be appropriate for me in the context of a bail application, to embark on such an exercise. Unless overturned by the Court of Appeal, the decision of this Court made on 1 March 2007 stands, and matters will proceed on that basis.
23	I mention that on behalf of Mr Dodo, Ms Faasau made a spirited attempt to persuade me that difficulties in her client’s family circumstances arising from he being absent from home justified his release on bail.
24	While his family circumstances are unfortunate, it has to be remembered that her client, along with the other accused, are awaiting trial for murder. In these circumstances the personal circumstances of the accused and their families is very much a secondary consideration and in this case is far outweighed by the seriousness of the charges faced.
25	For these reasons I refuse all the applications for bail.
By the Court