Criminal Law in Solomon Islands
Table Of Contents
Question Of Bail
Murder & Treason
Bail After Conviction
In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria ACJ held at page 3:
'The common law presumption of innocence is embedded under the Constitution of Solomon Islands and it is done without qualification […]. Thus prima facie, an accused person is entitled to bail.' (emphasis added)
In John Mae Jino & John Gwali Ta'ari v R (Unrep. Criminal Appeal Case No. 172 of 1999) Palmer J held at page 1:
'Bail is a right protected by law (section 106 of the Criminal Procedure Code). The granting of bail by the court however is discretionary. That means it is not to be unreasonably withheld.'
In Wells Street Magistrates' Court; Ex parte Albanese (1982) 74 CrAppR 180 [ 3 AllER 769;  3 WLR 694;  CrimLR 771] Ralph Gibson J, delivering the judgment of the Court, commented at page 187:
'[T]he public duty of the Court is to grant bail unless, inter alia, it considers that there are substantial grounds for believing that the defendant would fail to surrender to custody.'
The onus is therefore on the prosecution to satisfy the Court on the 'balance of probabilities' that a defendant should not be granted 'bail'.
In R v Mackintosh (1983) 76 CrAppR 177 Lawton LJ, delivering the judgment of the Court, commented at page 182:
'It is important that the police should bear in mind that it is stupid as well as unlawful to keep someone in custody for a minute longer than they should.'
In R v Sanghera  2 VR 130 the Court held:
It is open to a Court to receive and take into account any relevant evidence, whether admissible under the rules of evidence or not, if it considers the evidence creditable or trustworthy in the circumstances.
If in objecting to the granting of bail, the prosecution is relying on the criminal history of a defendant, it should be handed in writing to the Court, rather than reading it out in open court, see R v Dyson (1944) 29 CrAppR 104.
If a defendant is granted bail, subject to bail conditions, the onus is on the defence to satisfy on the 'balance of probabilities' that the defendant:
[i] will not abscond; and
[ii] will comply with such conditions.
See also: R v Mansfield JJ, Ex parte Sharkey  1 AllER 193;  3 WLR 1328;  QB 613;  CrimLR 148.
Section 5(3) of the Constitution states (in part):
'Any person who is arrested or detained –
(a) […]; or
(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands,
and who is not released, shall be brought without undue delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.' (emphasis added)
The following provisions of the Criminal Procedure Code (Ch. 7) must be considered:
Section 20 states:
'A police officer making an arrest without a warrant shall, without unnecessary delay and subject to the provisions of this Code as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case or before an officer of or above the rank of sergeant.' (emphasis added)
Section 23 states:
'When any person has been taken into custody without a warrant for an offence other than murder or treason, the officer in charge of a police station to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate Magistrates' Court within twenty – four hours after he has been so taken into custody, inquire into the case, and unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognizance with or without sureties, for a reasonable amount to appear before a Magistrates' Court at a time and place to be named in the recognizance, but where any person is detained in custody he shall be brought before a Magistrates' Court as soon as practicable: […]' (emphasis added)
Defendants who are charged with 'murder' or 'treason' must also be brought before a Magistrates' Court 'as soon as practicable', as commented by Daly CJ in R v Baefaka  SILR 26 at page 29.
See also: R v Holmes, Ex parte Sherman & another  2 AllER 612.
Section 106 states:
'(1) Subject to the provisions of section 23 where any person, other than a person accused of murder or treason, is arrested or detained without warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person may in the discretion of the officer or court be admitted to bail with or without a surety or sureties.
(2) The amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.
(3) Notwithstanding anything contained in subsection (1), the High Court may in any case direct that any person be admitted to bail or that the bail required by a Magistrate's Court or police officer be reduced.' (emphasis added)
See also: sections 107 ['Recognisance of bail']; 108 ['Discharge from custody']; 109 ['Deposit instead of recognizance']; 110 ['Power to order sufficient bail when that first taken is insufficient']; 111 ['Discharge of sureties']; 112 ['Death of surety']; 113 ['Persons bound by recognizance absconding may be committed']; 114 ['Forfeiture of recognizance']; 115 ['Appeal from and revision of orders'] & 116 ['Power to direct levy of amount due on certain recognisances'].
The following provisions of the Juvenile Offenders Act (Ch. 14) must be considered:
Section 5 states:
'Where a person apparently under the age of eighteen years is apprehended, with or without warrant, and cannot be brought forthwith before a juvenile court, a police officer of or above the rank of Inspector, or the officer in charge of a police station to which such person is brought, shall forthwith enquire into the case, and –
(a) unless the case concerns a grave crime; or
(b) unless it is necessary in the interests of such person to remove him from association with any undesirable person; or
(c) unless the officer has reason to believe that the release of such person would defeat the ends of justice,
shall release such person on a recognisance, with or without sureties, for such amount as will, in the opinion of the officer, secure the attendance of such person upon the hearing of the charge, such recognisance being entered into by him or by his parent or guardian or other responsible person.' (emphasis added)
The term 'Grave Crime' 'means any crime specified in the Schedule, and the Minister may from time to time by order amend the Schedule', see section 2 of the Act. (emphasis added)
As outlined in the Schedule, the following are 'Grave Crimes' for the purpose of the Juvenile Offenders Act (Ch. 14):
· Attempted Murder;
· Unlawful Wounding;
· Unlawful Poisoning; and
· Causing Grievous Harm.
Section 6 states:
'Where a person apparently under the age of eighteen years having been apprehended is not released as aforesaid, the officer in charge of the police station to which such person is brought shall cause him to be detained in a place of detention until he can be brought before a juvenile court unless the officer certifies –
(a) that it is not practicable to do so; or
(b) that he is of so unruly or depraved a character that he cannot be safely so detained;
(c) that by reason of his state of health or his mental or bodily condition it is inadvisable so to detain him,
and the certificate shall be produced to the court before which the person is brought.' (emphasis added)
A 'place of detention' 'means a place of detention provided for or appointed by the Minister under section 17', see section 2 of that Act.
Considering that no such places have been so appointed, such persons apparently under the age of eighteen years should be held in custody in a watchhouse and segregated from adult offenders. In such circumstances the parent and / or guardian should be advised.
Section 7 states:
'It shall be the duty of the Commissioner of Police or other person having custody of a child or young person being detained to make arrangements for preventing so far as practicable such child or young person while being detained, from associating with any other person not being a child or young person, other than a relative or guardian, charged with an offence.'
Section 8 states:
'(1) A court on remanding or committing for trial a child or young person who is not released on bail shall, instead of committing him to prison, commit him to custody in a place of detention, or to the care or custody of any person, named in the commitment, to be detained or cared for, as the case may be, for the period during which he is remanded or until he is thence delivered in due course of law:
Provided that in the case of a young person it shall not be obligatory on the court so to commit him if the court certifies that he is of so unruly a character that he cannot be safely so committed, or that he is of so depraved a character that he is not a fit person to be so detained or cared for.
(2) A commitment under this section may be varied, or, in the case of a young person who proves to be of so unruly a character that he cannot be safely detained in such custody, or cared for, as the case may be, or to be so depraved a character that he is not a fit person to be so detained, or cared for, revoked by any court, and if it is revoked the young person may be committed to prison.' (emphasis added)
According to section 2 of that Act, the term:
· 'Child' 'means a person who is, in the opinion of the court having cognisance of any case in relation to such person, under the age of fourteen years' (emphasis added); and
· 'Young Person' 'means a person who is, in the opinion of the court having cognisance of any case in relation to such person, fourteen years of age or upwards and under the age of eighteen years.' (emphasis added)
Bail applications in respect of children should not be held in public, see section 4(4) of the Juvenile Offenders Act (Ch. 14).
Refer also to the law relating to the 'Right To Be Heard In Open Court' commencing on page 155.
[17.4] Question Of Bail
The following factors should be considered when deciding whether to grant 'bail':
[i] Whether the defendant will abscond on bail.
In R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991) Ward CJ held at page 3:
'The principal consideration in all bail applications is whether the accused will attend his trial.'
See also: R v Dickson Maeni (Unrep. Criminal Case No. 117 of 1999; Palmer J; at page 2).
Refer also to section 113 of the Criminal Procedure Code (Ch. 7).
[ii] The nature of the accusation or 'seriousness' of the alleged offence.
See: R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995; Palmer J; at page 1); R v Perfili (Unrep. Criminal Case No. 30 of 1992; Muria CJ; at page 2) & R v Phillips (1947) 32 CrAppR 47.
[iii] The nature of the evidence to be adduced.
See: R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991; Ward CJ; at page 3); R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995; Palmer J; at page 1); R v Perfili (Unrep. Criminal Case No. 30 of 1992; Muria CJ; at page 2) & R v Phillips (1947) 32 CrAppR 47.
[iv] The severity of the punishment which conviction would entail.
In R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991) Ward CJ held at page 3:
'I must also bear in mind that the nature of the offence and the penalty if convicted raise a prima facie risk the accused may try to avoid the trial.'
See also: R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995; Palmer J; at page 1); R v Perfili (Unrep. Criminal Case No. 30 of 1992; Muria CJ; at page 2) & R v Phillips (1947) 32 CrAppR 47.
[v] Whether the defendant will interfere with prosecution witnesses and police investigation.
In Perfili v R (Unrep. Criminal Case No. 30 of 1992) Palmer PJ stated at pages 3 – 4:
'Although I am satisfied that if the applicant is released on bail he will not abscond there are other factors that this Court is entitled to consider.
One of these and the main one raised by Prosecution is the possibility of tampering with evidence and interference with prosecution witnesses and investigation.
[…] It is obviously in the interests of justice that police are allowed the opportunity to investigate all avenues and sources, links and persons properly and that no possibility of interference is permitted.' (emphasis added)
See also: R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991; Ward CJ; at page 3); R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995; Palmer J; at page 2); R v Dickson Maeni (Unrep. Criminal Case No. 117 of 1999; Palmer J; at page 2) & The State v Tohian  PNGLR 173 at pages 177 – 178.
[vi] The possibility of a repetition of the offence or of further offences.
See: R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991; Ward CJ; at page 3).
'Some crimes are not likely to be repeated pending trial and in those cases there may be no objection to bail; but some are, and house-breaking particularly is a crime which will very probably be repeated if a prisoner is released on bail, especially in the case of a man who has a record for housebreaking such as the applicant had. It is an offence which can be committed with a considerable measure of safety to the person committing it', see R v Phillips (1947) 32 CrAppR 47 at page 48.
[vii] The length of any delay.
In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria ACJ held at page 2:
'The question of delay in bringing an accused person to trial is a relevant factor to be taken into account in considering bail applications. I feel it is particularly important that the liberty of an accused person must be borne in mind in order to minimize any delay in bringing an accused person to trial.'
In R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995) Palmer J held at page 2:
'The accused has spent a better part of his time in custody and now that a trial date has been fixed not more than a month away, it needs to be shown that further remand in custody until that time taking all relevant matters into account would be prejudicial to this accused's interests.' (emphasis added)
[viii] The family needs of the defendant.
In R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995) Palmer J held at page 3:
'It has not been shown that his wife and children urgently need him; that if he is not released on bail that something drastic will happen to them.'
However, a defendant should not be held in custody, only on the basis that the arresting or investigating officer needs to finalise his/her investigation, see Peter Hou v The Attorney – General  SILR 88 at pages 90 – 91.
[17.5] Bail Conditions
In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria ACJ held at pages 3 - 4:
'The common law presumption of innocence is embedded under the Constitution of Solomon Islands and it is done without qualification […]. Thus prima facie, an accused person is entitled to bail. However, the law also allows conditions to be put on the bail in order to secure the attendance of the accused at his trial. Once conditions are imposed on a bail granted, it is for the accused to show that those conditions do not apply to him and that he will attend at his trial.
[…] The object of imposing conditions on a bail is to secure the attendance of the accused at the trial. The onus is on the Accused to satisfy the Court that he will attend at the trial.' (emphasis added)
'Bail conditions' which may be imposed by a court include:
[i] Requirement to reside at a particular address.
[ii] Imposition of sureties.
The law relating to 'Sureties' is examined commencing on page 385.
[iii] Imposition of cash bail.
See: section 109 of the Criminal Procedure Code (Ch. 7).
[iv] Surrender of a passport.
In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria CJ commented at pages 2 – 4:
'It is not unusual that a foreigner charged with a criminal offence in a foreign country may very well find his passport or other travelling documents withheld to prevent him escaping criminal prosecution. […]
Apart from the other considerations raised by Counsel for the Court to take into account in exercising its discretion, the paramount consideration in such a case as the present where an accused is from a different country, is the question of securing the attendance of the accused at the trial. If the Court is not satisfied that the Accused will attend at the trial, then even if the other considerations are satisfied, the Court will not grant unconditional bail.' (emphasis added)
[v] Reporting condition to a police station.
[vi] No contact with the complainant and / or other witnesses to be called by the prosecution.
[vii] No interference with the on-going police investigation.
See: R v John Robu, Henry Faramasi, Lency Maenu & Peter Ka'abe (Unrep. Criminal Case No. 29 of 1998; Palmer J; at page 2); R v Dickson Maeni (Unrep. Criminal Case No. 117 of 1999; Palmer J; at page 2); John Mae Jino & John Gwali Ta'ari v R (Unrep. Criminal Appeal Case No. 172 of 1999; Palmer J; at page 2) & R v Perfili (Unrep. Criminal Case No. 30 of 1992; Muria CJ; at page 1).
As regards the issuance of a 'surety' refer to sections 106, 107 108, 109, 111, 112 of the Criminal Procedure Code (Ch. 7).
It is at the discretion of the police officer or Court granting bail as the sufficiency of a surety. Prior to the acceptance of the obligations of a surety, the police officer or Court should ensure that such a person:
[i] is advised exactly what his/her obligations as a surety are;
[ii] understands such obligations;
[iii] understands what action can be taken against him/her, if he/she fails to fulfil such obligations; and
[iv] is still prepared to undertake such obligations.
In R v Inner London Crown Court; Ex parte Springall & another (1987) 85 CrAppR 214 [ CrimLR 252] Peter Pain J stated at pages 218 – 219:
'Southampton Justices; Ex parte Green  QB 11 […] is the authority showing that in considering whether there should be some mitigation of the recognizances which are to be estreated, the court may look at the conduct of the surety concerned, and we were referred to the passage at p.19F in the report when Lord Denning said this:
"By what principles are the justices to be guided? They ought, I think, to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or a substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely."
The width of what Lord Denning said has perhaps been curtailed a little by what was said by the Master of the Rolls and Donaldson LJ in a case which is not reported, but is referred to in the judgment of McCullough J in Uxbridge Justices; Ex parte Heward – Mills  1 AllER 530, a judgment which contains a valuable collection of various authorities on the subject. At p.533E he refers to the judgment of Donaldson LJ in Walthman Forest Justices; Ex parte Parfrey noted in  CrimLR 571, although Mc Cullough J was obviously quoting from a transcript of the judgment. The Master of the Rolls said this:
"The obligation entered into by someone who enters into a recognizance as a surety is a very serious obligation indeed. I hope that nothing I say today will suggest to the contrary. There is an obligation on a surety to be fully satisfied that he or she can meet the liability which will arise if the accused person does not surrender to his bail. This failure to surrender is not a theoretical possibility, though a surety may think it is. The unhappy event of arrested persons not surrendering happens frequently. There is a real risk. Indeed it is difficult to conceive of a set of circumstances in which a surety can be absolutely sure that the accused will surrender to his bail. So let no one think that this is an obligation which can be entered into lightly. Furthermore, the burden of satisfying a court that the full sum should not be forfeit is a very heavy one, so again let no one think that they can simply appear before the magistrates and tell some hard luck story, whereupon the magistrates will say, 'Well, be more careful in future'. We are not dealing with that character of obligation at all."
Then in reference to what Lord Denning said in Ex parte Green, Donaldson LJ said this:
"Lest this passage be misunderstood by justices, as I think it might well be misunderstood, let me stress the fact that Lord Denning said that, if there was no want of due diligence and every effort had been made to secure the appearance of the accused man, if might (not that it would necessarily, but it might) be proper to remit it entirely. For my part, I think that Lord Denning was contemplating a wholly extreme and exceptional case when he said that. I do not, for my part, believe that he ever intended to suggest that the mere fact that every effort to secure the appearance of the accused man had been made and that there was no want of due diligence involved the proposition that the amount of the obligation should be remitted entirely."' (emphasis added)
See also: R v Tottenham Magistrates' Court, Ex parte Riccardi (1978) 66 CrAppR 150 & R v Wells Street Magistrates' Courts; Ex parte Albanese  3 AllER 769;  3 WLR 694; (1982) 74 CrAppR 180;  CrimLR 771.
[17.7] Fresh Applications
Generally on a 'fresh application' for 'bail' the Court should only consider any 'new considerations' which were not before the court on the previous occasion when 'bail' was refused, see R v Nottingham Justices, Ex parte Davies  2 AllER 775;  QB 38; (1980) 71 CrAppR 178;  3 WLR 15.
However, the 'exceptions' to that rule of practice are when:
[i] permission is granted by the Court which refused 'bail' to a defendant to apply for 'bail' afresh;
[ii] an appeal is being made to a higher court; or
[iii] a defendant is committed for trial or sentence.
In R v Slough Justices, Ex parte Duncan & another (1982) 75 CrAppR 384 [ QB 451] Ormrod LJ, delivering the judgment of the Court, stated at page 388:
'Mr Smith contends that the committal itself is ipso facto a material change of circumstances for this purpose and so requires the court to reconsider the question of bail. In many cases there will, in fact, be a material change or changes in the circumstances at this stage for obvious reasons. For example, the strength of the prosecution case may be better known, or it may be possible to re – evaluate the seriousness of the offence, or the time likely to elapse before the case comes to trial. Other relevant considerations may emerge at this stage. But in other cases the fact that the committal stage has been reached may leave the actual position in regard to bail unchanged, eg., it is unlikely to reduce the likelihood of further offences being committed if bail is granted.'
The law relating to 'Preliminary Investigations / Inquiries' is examined commencing on page 310.
[17.8] Murder & Treason
Section 23 states:
'When any person has been taken into custody without a warrant for an offence other than murder or treason, the officer in charge of a police station to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate Magistrates' Court within twenty – four hours after he has been so taken into custody, inquire into the case, and unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognizance with or without sureties, for a reasonable amount to appear before a Magistrates' Court at a time and place to be named in the recognizance, but where any person is retained in custody he shall be brought before a Magistrates' Court as soon as practicable: […]' (emphasis added)
Considering that in respect of 'murder' and 'treason' charges only the High Court can grant 'bail, arresting or investigating officers are required to advise the officer of the Director of Public Prosecutions as soon as reasonably practicable.
Defendants who are charged with 'murder' or 'treason' must also be brought before a Magistrates' Court as soon as practicable, as commented by Daly CJ in R v Baefaka  SILR 26 at page 29.
In Karawaisa Taisia v Director of Public Prosecutions (Unrep. Criminal Case No. 266 of 2001) Kabui J stated at pages 2 – 3:
'The Court has a discretion to grant bail or not to grant bail. This means that granting bail is not automatic on its own. The exercise of the discretion of the Court therefore depends upon the facts of each case before the Court in view of the principles governing bail applications in murder cases such as this case. In the first place, a person is detained by Police in connection with the offence of treason or murder cannot be released by the Police but must be brought to the Magistrate Court as soon as is reasonably possible. This is done under section 23 of the Criminal Procedure Code Act. The reason for non – release of a person held by the Police in connection with treason or murder is that such offences are serious offences. In such cases, bail can only be granted by the High Court. The test to be applied is whether or not it is probable that the accused will appear in Court at the trial date.'
In R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991) Ward CJ stated at page 2:
'[S]ection 106 makes it clear, when the charge is murder or treason, it is only exceptionally that bail is granted. Mr. Young seeks to distinguish between good reason, special circumstances and exceptional circumstances. I am afraid I do not feel such distinctions apply in this case. The effect of Section 106 is that bail in murder cases will only be granted in exceptional circumstances. However, whilst that places a heavier burden on the defence, the same considerations apply as in any bail application. The court must consider them all but bear in mind that the effect of section 106 in a case involving a charge of murder or treason means it is only in rare cases that bail will be granted.' (emphasis added)
In R v Dickson Maeni (Unrep. Criminal Case No. 117 of 1999) Palmer J stated at page 1:
'It is correct that bail applications in murder charges are rarely given by this Court. It is because the nature of the charge and the severity of the punishment are very serious. But that does not mean that bail will not be considered or given.'
[17.9] Bail After Conviction
Section 290 of the Criminal Procedure Code (Ch. 7) provides the authority of the High Court or the Court which convicted the appellant to grant bail pending an appeal.
In Susan Tamana v R (Unrep. Criminal Case No. 15 of 1995) Muria CJ stated at pages 1 – 2:
'It must be pointed out, […], that the principles to be considered in an application for bail after conviction cannot be treated as the same as those in an application for bail before conviction. The presumption of innocence which is a guiding legal principle in criminal cases no longer exist after a person has been found guilty by a competent court. By the same note, the right of appeal does not revive that pre-conviction presumption of innocence. It will therefore be a case of exceptional circumstances which will justify the court in granting bail to a person who has been found guilty and convicted.
The position in this jurisdiction is that an application must show that there are matters which constitute exceptional circumstances before bail is allowed pending appeal. This has been succinctly pointed out in INITO –v- R (1983) SILR 177 where the court re-iterated the inveterate practice of appellant courts in bail applications pending appeals. In Inito's case, the court pointed out the conditions to be satisfied before bail can be granted pending appeal. These are:
(a) there is a possibility that a sentence of imprisonment be set aside entirely; or
(b) the sentence is likely to be served completely before the appeal is heard; or
(c) there are exceptional reasons. This last criteria of exceptional reasons or exceptional circumstances must be those of the case and not of the applicant.' (emphasis added)
See also: R v Garnham (1910) 4 CrAppR 150; R v Wise (1922) 16 CrAppR 17 & R v Fitzgerald (1923) 17 CrAppR 147.
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