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High Court of Solomon Islands |
IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Case No: 74 of 2004
REGINA
V
DAVID AILI & THOMPSON KILATU
(Naqiolevu, J)
Date of Hearing: 25 April, 9 May, 27 June 2008
Date of Ruling: 4 December 2008
For Applicants: Mr M. Anders/Ms. A. Fa’asau
For Respondent: Mr. M. Coates
RULING
Naqiolevu J.
1. The applicants are charged with the offences of Abduction pursuant to Section 250 of the Penal Code and Robbery pursuant to Section 293 (1) of the Penal Code.
2. The applicants at the time of the offence were members of the Solomon Islands Prison Service and Solomon Islands Police respectively.
OFFENCE
3. The charges against the applicants are that on the 14th of July 2003 along with a number of armed men attended the commercial premises of Red Beach Enterprises at Ranadi.
4. Present at the premises was Patrick Hampton, a Frank Loea and a number of Loea’s relatives that lived at the premises.
6. Mr Hampton was then manhandled into the rear of the cab of the vehicle. Other members of the group also entered the vehicle and demand were made to take them to his home. He gave directions and at one stage tried to escape by jumping from the vehicle but was prevented.
7. The group once at Mr Hampton’s house asked him where the other vehicles were, and he informed them they were at the warehouse and they then returned to the warehouse. Once at the warehouse they demanded to be let into the second warehouse. The group then commenced to ransack the office and took a number of items and load them into the car.
8. The victim, while the group was stealing items and ransacking the office managed to escape and ran to another company's warehouse, who informed him they observed the events and had called the uniformed MEF.
9. After the incident, one of the applicant was observed driving one of the stolen vehicles matching the description, the registration number of the vehicle had been changed to a new number. The applicant was located at the Star Division at Rove and the vehicle was identified as the missing vehicle.
10. The applicants through their counsel ask the court to order that the offences with which the accused presently stands charged be permanently stayed as the prosecution contravene the terms of the Amnesty Act 2000.
CROWN’S SUBMISSION
11. The crown in its initial response submit that the factual basis for a stay is not made out. There is no evidence but only assertions by way of address.
12. The crown after the preliminary initial hearing and a lapse of time, given the file was misplaced was asked by the court to make further submission.
13. The Amnesty Act 2000 enacts the benefit of which the applicant seek Sections 3 (1) for the class of categories of people who qualifies to have the benefit. Section 3 (2) provides in effect that the criminal acts be in respect of the execution of purported execution by any person.
14. The crown submit the facts of the case amounts to an ordinary robbery and abduction. They cannot be said to be in respect of criminal acts committed in the execution or the purported execution of the requirements of subsection (a) (b) and (c) of Section 3 (2) of the Amnesty Act.
15. Counsel raise the issue of the Burden of Proof rests upon the accused and the standard is on the balance of probabilities. This is because the defence who brings the application and as such should bear the burden of proof.
16. The crown on the eligibility of the two accused accepts they are within one of the groups who are entitled to Amnesty under Section 3 (1) of the Amnesty Act 2000, provided other conditions are met. Kilatu was a member of the Prison Service and Aili was a police officer. However there is no evidence that they were part of the Malaita Eagle Force. Aili had stated that he was not a member of the MEF and so did Kilatu.
17. The crown submit that the offence are outside the ambit of the amnesty act. Section 3 (2) States that any criminal acts committed in the execution or purported execution by any person the following:-
(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.
18. The crown submit clearly Section 3 2 (a) does not apply as they are not members of the IFM: Section 2 (b) further does not apply as there is no evidence that the two applicants are members of the MEF. Secondly the criminal act has to be in retaliation against the forceful eviction of Malaita from Guadalcanal Province. Furthermore the victim in the case is an expatriate and the criminal acts involved armed robbery threats and looting of a warehouse.
APPLICANT’S SUBMISSION
19. The applicants submission are that the Amnesty Act (2000) and Constitution (Amendment) Act 2001 provides protection from criminal prosecution for various groups of persons involved in acts done at times relevant to these criminal proceedings.
20. The accused and his co-accused were serving members of the RSIP at the date of the allegation. There are strong suggestions that the alleged offenders and the accused are members of the MEF.
21. This reference includes the statement of Chris Naha dated the 15-10-03 and Richard Muniby dated 15-10-03.
22. The prosecutions case is very clearly going to be to the effect that the 2 accused were involved in the taking of these vehicles and other property, and that they were members or affiliated with MEF at the relevant time.
23. Counsel for the defence submit the applicants come within the definition of persons entitled to rely upon the provisions of the Legislation granting amnesty on either or both of the two on the basis that they were a serving member of the Royal Solomon Islands Prison Service at the relevant time and/or he was a member of the joint para-military force.
24. Counsel submit the applicant has applied within the required period and surrendered the firearms and ammunitions and attached the Annexure A, a copy of the Certificate of Surrender dated 29th May 2002. The certificate detail the accused holding the rank of Inspector of the Prison Service. There is no evidence to suggest that the applicant retained any proceeds of the offence outside of the period covered by the amnesty.
25. Counsel submit the offence come within the ambit of the amnesty as it occurred within Guadalcanal and comes within Section 3 (c) of the Townsville Peace Agreement. The offence here consist of criminal acts performed as part of the process of securitization of Honiara. They are criminal act which enabled motor vehicle, office equipment and other commercial property to be taken and applied to the use of the RSIP and the MEF.
26. Counsel further submit the amnesty apply to relevant criminal acts of the relevant nature here, which are done during the period 5th of June 2000 to 1st of October 2000. The offence are alleged to have occurred between 1st June 2000 and 31st of August 2000.
27. The defence in their further submissions in response to the crown submit the applicable standard of proof for the applicant should be on the balance of probabilities and cited Briginshaw-v-Briginshaw ([1]), which is the lower standard of proof then that applicable in criminal cases where the prosecution must prove beyond reasonable doubt.
28. Counsel further submit that where the prosecution opposes any part of the evidence that is a necessary condition for the granting of an amnesty that the standard of proof for the respondent should be beyond reasonable doubt.
29. Clearly the Amnesty Act 2000 and the Amnesty Act 2000 is precise in its intention and purpose. The provisions are clear and requires compliance before a person or persons can avail themselves of its provisions.
30. Section 2 and 3 of the Act states:
"2, In this Act-
"Townsville Peace Agreement" means the Agreement signed in Townsville, Australia on the fifteen day of October, 2000, by the Malaita Eagle Force, Isatambu Freedom Movement, Malaita Province, Guadalcanal Province and the Solomon Islands Government.
3(1) 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 hereafter provided –
(a) Leaders, members and other civilian advisors associated with the Malaita Eagle Force;
(b) Members of the Solomon Islands Police Force;
(c) Leaders, members and other civilian advisors associated with the Isatambu Freedom Movement;
(d) 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 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 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 direction connection with the circumstances referred to in subsection (2) (a), (b) or (c) of this section".
31. The two applicants are clearly within one of the groups who are entitled to amnesty under the provisions of Section 3 (1). Kilatu was a member of the Prisons Service and Aili is a Police Officer.
32. The court in considering whether the applicants are entitled to the amnesty under the provision of Sub-section (2) of Section 3 is of the view that the offence is not a joint operation. A joint operation must involve the MEF members of the Police and Prison Service and RRU. Clearly the operation by the group of men involved only themselves. See R-v-Su’u ([2])
33. The court is of the view that sub-section 4 of Section 3 is not satisfied as the raid on the victims property cannot be considered as a military, or security operation. The act is simply one of an armed gang taking advantage of the situation prevailing at the time by abducting the victim and demanding the key at his compound and robbing him of the property.
34. The court in considering the provision of Section 2 of the Amnesty Act in relation to whether the offence of which the accused are charged with has any direct connection to criminal acts committed in the execution or purported execution by any person under sub-section (a) (b) and (c). The court is satisfied that the act clearly does not fall within the provision.
35. The court is of the opinion that in order for the applicants to come within the provision of the Amnesty Act, he must satisfy all the provision of the section, and cannot simply claim they qualify by fulfilling only part of the requirement under the provision. See Cecil Nokia & Others –v- R ([3])
Burden of Proof
36. The court having considered the burden of proof required in an application adopts the principle enunciated in the case of ([4])R-v-Gerard Peter Young, when the court stated the principle of law
First, because it is a principle running all through our law that in general he who asserts should prove; secondly, because in the analogous type of case where it is alleged on behalf of a defendant that he is unfit to plead, those acting for him have to prove unfitness to the satisfaction of a jury; see Podola (1959) 43 Cr. App. R. 220; [1960] 1 Q.B. 325; 350. The word "satisfaction" is apt to the standard of proof in a civil case, that is to say on the balance of probabilities. This is the appropriate standard when a defendant puts forward reasons why he should not be tried. See Podola (supra) at pp. 235 and 350. The judge could, perhaps, have given more help by explaining what was meant by "satisfaction"; but the fact that he did not does not merit this Court setting aside the verdict on the plea in bar.
The court having taken all the factors into consideration find that the applicants therefore are not entitled to the immunity prescribed under the Act have not satisfied all the provisions of Section 3 of the Amnesty Act.
The application is hereby refused.
THE COURT
[1] (1938) 60 CLR 336
[2] [2007] SBHC. 144
[3] Crim Case No. 538 of 2004
[4]
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URL: http://www.paclii.org/sb/cases/SBHC/2008/104.html