R v Susuburi [2021] SBMC 8; Criminal Case 369 of 2021 (2 September 2021)

IN THE CENTRAL MAGISTRATES’ COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 369 of 2021

REGINA

-v-

STANLEY SUSUBURI

&

SAM TOME

Date of hearing: September 1, 2021
Date of verbal ruling: September 1, 2021
Date of written ruling: September 2, 2021

Mrs. Elma R. Hilly for the Crown
Mr. Steven Weago for the Accused

RULING ON APPLICATION FOR REMAND

1. This is a ruling on an application for remand of the two defendants, Mr. Stanley Susuburi and Sam Tome in custody until September 3, 2021. Mrs. Hilly of Counsel appearing for the Crown made the application after Mr. Weago of counsel for the defendants sought time to obtain full instructions from the defendants regarding plea. In support of the Crown’s application for remand, Counsel Hilly primarily relied on regulation 39 (1) (a) (b), as read with regulation 4 (4) of the Emergency Powers (Covid-19)(No. 2) Regulations 2021.
   
2. The gist of her submission was that, regulation 39 of the Emergency Powers Act (Covid-19) (No. 2) Regulations 2021, gives the authorized person the power to detain a person under police custody for more than 24 hours, or to be specific, 72 hours. She submitted that the 72 hours will lapse on September 3, hence, would be proper and lawful to remand the defendants in custody until that date, to allow police to complete outstanding matters, and for them to take their plea.
   
3. Mr. Weago of Counsel for the defendants submitted that the defendants have been in custody for more than 24 hours, as permitted by law, under section 23 of the Criminal Procedure Code (Cap. 7). Thus, seeks the court to instead, grant bail for the two defendants. He also submitted that both defendants are presumed innocent until proven guilty^[1], hence, if the crown is to pursue a remand for the defendants, it should substantiate it with proper evidences to support the application. In this case, he submitted that they failed to do.
   
4. There were conflicting views advanced by both counsels, regarding the application of regulation 39, and section 23 of the Criminal Procedure Code (“CPC”). Counsel Weago submitted that the application of CPC is not affected by regulation 39, therefore, the authorized person, or police should have brought the defendants to Court after 24 hours of detaining them. It was his submission that, section 23 of the CPC remains intact. Counsel Hilly for the crown, vehemently argued against this view, her submission was that, regulation 39 when read with regulation 4 (4) explains the ambiguity of which law to prevail, and in this case and circumstance, she submits the ‘Regulations’ prevail.
   
5. The application of regulation 39^[2] (1) (a) & (b) is as quoted below:
   

“(1) An authorized person exercising a power under regulation 38(1):

(a) may without a warrant, search, question, detain or arrest a person, and continue investigating the case against the person, for 72 hours after detaining or arresting the person, without either applying for warrant or bringing the person before the Magistrates Court; and

(b) After the period of 72 hours referred to in paragraph (a) ends, must not search, question, detain or arrest a person, or continue investigating the case against a person, unless the authorized person does so in accordance with a warrant obtained from a Magistrate.”

6. Clearly, regulation 39 (1)(a) gives the authorized person, in this case, the Royal Solomon Islands Police Force (“RSIPF”), the power to detain the defendants for more than 24 hours, or for period of 72 hours. I acknowledge that this regulation prevails in this state of emergency, thus, would mean that it prevails when confronted with Section 23 of the Criminal Procedure Code (Cap. 7). I agree with Counsel Hilly, regulation 4 (4), explains the ambiguity of which law to prevail, and in this circumstance, the ‘Regulations’ prevail. Regulation 4 (4) states:
   

“...In accordance with section 4 (2) of the Act, in the event of an inconsistency arising between a provision of these Regulations and any other law, these Regulations prevail.”

7. In view of what is discussed above, I accept that the authorized person, or the Police holds the power to detain the defendants for more than 24 hours, or for a period of 72 hours, and what they did in the defendants case is, procedurally lawful.
   
8. In addition, regulation 39(1) (b) gives the authorized person the power to search, question, detain or arrest a person, or continue investigating the case against a person if the Magistrate issued a warrant to do so, only after lapse of 72 hours. Unfortunately, this regulation is vague, to specify the type of ‘warrant’ to be issued by the Magistrate. Here, Mrs. Hilly is seeking the court to remand the two defendants until September 3, for what she stated as, a sufficient time for police to complete outstanding matters, and to allow defendants to take their pleas. In my view, regulation 39 (1) (b) can only be applicable after 72 hours, which in this case is inapplicable, because the defendants were brought before this Court before the lapse of 72 hours.
   
9. I shall now proceed to consider the submission on; whether regulation 39 is a valid ground for remand of the defendants, and whether the court can consider regulation 39 to justify an extension for detaining the defendants until Friday 3 September. First, it is proper to state that, regulation 39(1) (a), applies to procedural matters within the powers of authorized person exercising powers under regulation 38(1) (a) to (g), in this case, the Police. And, this should mean, prior to applying for a warrant before a Magistrate. Sub-regulation (b) can only be applied after lapse of 72 hours, which in this case, it does not qualify. It must also be clear that regulation 39, in its totality, does not give the court power to ‘automatically’ issue remand warrant, or extend any detention period before or beyond 72 hours.
   
10. Second, if in the circumstance that the defendants are to be brought before a Magistrate before the lapse of 72 hours, it should not be taken that the court will ordinarily issue a warrant in conjunction to regulation 39 and to extend the detention period until lapse of 72 hours. This view is misconceived. Rather, whenever a defendant is brought before a Magistrate for an application for remand warrant, it give rise to the original burden, that is, for the crown to prove that the defendants are not worthy candidates for bail, or to show on sufficient and proper information before the Court that the circumstances of the offence and or the circumstances of the offender warrant the accused’s remand in custody^[3].
    
11. It must be clear that, regulation 39 does not displace the original considerations or factors in any application for remand, unless if the crown is seeking a different form of warrant. For a warrant to remand the defendants in custody, crown has to prove on the balance of probabilities that the defendants pose flight risk, risk of absconding or re-offending, and risk to the administration of justice. There were no submission on seriousness of the offence as well. Unfortunately, there is simply nothing before the court to consider; no evidence of sworn statement to justify the remand of the defendants.
    
12. The power to consider whether or not to remand the two defendants is a discretion left in the hands of the presiding Magistrate, after balancing the apparent risks and weighing with the evidences put forward to succor the application for remand. Regulation 39 is neither a ground, nor evidence for remand of the two defendants.
    
13. For what I have discussed above, I am not satisfied that the defendants poses flight risks, risks of absconding or re-offending, or risk to the administration of justice. There is simply no evidence to support the application for remand of the two defendants. Therefore, rule to dismiss the application for remand, and instead impose bail on the following bail conditions without Surety:
    
    1. The defendants to enter into a Principal Bail in the sum of $500
    2. The defendants must attend all their future court hearings.
    3. The defendants must reside at their place of residence, namely, Kena Hill, until completion of their case.
    4. The defendants must report to China town police station every Fridays, between the hours of 8am to 5pm.
    5. The defendants must not interfere with crown witnesses, either directly or indirectly.
    6. The defendants must not leave Guadalcanal Province, unless with leave of the court.
    7. The defendants must not commit any offence whilst on bail.
       
14. Right of appeal applies within 14 days.
    
15. Order accordingly.
    

THE COURT

..................................................

MR. LEONARD B. CHITE

Principal Magistrate

Central Magistrate Court

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^[1] Section 10 (2) (a) of the Constitution of Solomon Islands
^[2] Emergency Powers (Covid-19) (No. 2) Regulations 2021.
^[3] Kelesiwasi v Regina [2004] SBHC 93