HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 231 of 2003

Philip Mesa

v.

Controller of Prisons and Attorney General

High Court of Solomon Islands
(Palmer J.)

Date of Hearing: 22nd September 2003
Date of Judgment: 22nd September 2003

K. Averre for the Plaintiff
No appearance by the Attorney General

Palmer J.: The Plaintiff, Philip Mesa was arrested on or about 30th August 2003 on a charge of burglary contrary to section 299(a) of the Penal Code. The offence was alleged to have been committed on 23rd August 2003. He was subsequently remanded in custody until 14th September 2003. On the said date, which happened to be a Sunday, he appeared before Magistrate Leua. Learned Counsel, Mr. Averre for the Plaintiff pointed out to this court that it was quite unusual that when the accused was remanded in custody that his next hearing date was fixed for a Sunday. I agreed with learned Counsel and pointed out that perhaps it was an inadvertent error committed by the presiding Magistrate who may not have been aware that the date of 14th September 2003 fell on a Sunday. Whatever the reason, it must be made clear that subsequent remand dates and hearings should be listed for a normal working day, not on a weekend. One of the more obvious reasons for this is that at least it gives opportunity to remandees to have easy access to a duty solicitor at the court premises during such hearings. By having such hearings conducted on a weekend it most likely will deprive the remandee from having access to a duty solicitor. 

On the said day (14th September 2003), the Prosecutor applied to the presiding Magistrate to release the Plaintiff on bail. The Plaintiff was not represented at that hearing, but he did make clear in his submissions to the court that he had no means of acquiring cash to comply with any requirements for cash bail and that his only close relative in town, his sister, was also unemployed.

At the hearing before me, I directed that the file containing the records of proceedings of the learned Magistrate, in particular the orders of the presiding Magistrate of 14th September 2003 to be brought up. I took judicial notice of the learned Magistrate’s orders and records of proceedings.

The conditions of bail imposed were as follows:

(i)	Cash bail of $200.00 to be submitted by 12.00 noon 15th September 2003;

(ii)	Plaintiff to report to the Central Police Station every Mondays, Wednesdays and Fridays between the hours of 9.00 am and 4.00 pm; and

(iii)	 Plaintiff not to leave the town boundary.

The Plaintiff was then released to appear for further mention on 26th September 2003 at 9.00 am.

Unfortunately, by 12.00 noon 15th September 2003 it became obvious that the Plaintiff would not be able to comply with the requirement for cash bail. This was not surprising as he had already made this plain to the presiding Magistrate the day before, that he had no means of obtaining cash to meet any requirements for a cash bail. The imposition of a cash bail in the sum of $200.00 therefore was unreasonable from the outset. Further enquiry should have been undertaken as to what other security the Plaintiff could put up instead of a cash bail. Perhaps a surety may have been more suitable in the circumstances or an unsecured bail bond. It was obvious a cash bail was inappropriate and that the presiding Magistrate should not have imposed a condition which the Plaintiff could not comply with from the outset. The non-compliance of that bail condition was a foregone conclusion.

The Plaintiff turned up at the Magistrate’s Court on or about 12.00 noon (15th September 2003), and advised the Court Clerk of the Magistrates Court and his Counsel, Mr. Averre, of his plight. What happened thereafter is crucial to this application. The Plaintiff and his Counsel sought an appearance before Magistrate Leua who had carriage of the matter on the 14th September 2003, but were unsuccessful. This included a letter written by Mr. Averre of the same date requesting an urgent hearing to be convened. The relevant parts of his letter read:

“Philip Mesa appeared before the Magistrate and was granted cash bail in the sum of $200.00 to be paid by 12 noon on the 15th. He returned to court at that time but without cash bail. I understand that the Magistrate instructed your office that the defendant must go back on remand in custody.

However I would ask that the matter be listed before the Magistrate this afternoon. The reason for this is twofold:-

1.	I would like to make representations as to bail, the defendant has in fact turned up without the money knowing full well the implications and therefore any fears in terms of failing to surrender bail should be allayed. He has now appeared twice without representation.

2.	The defendant cannot simply be returned to custody. There is no basis upon which this can take place. The defendant has to be remanded in custody by the Magistrate and a warrant be drawn up for presentation to the authorities. That is not a paper process but part of the judicial process. The defendant is entitled to a bail application if there is to be any consideration of a remand in custody.

I would be most obliged if this matter be placed before the Magistrate.”

Erroneously, the presiding Magistrate held that he was functus officio, declined jurisdiction and directed that any objections to his orders were to be challenged by way of appeal. A warrant of commitment to prison for remand was re-issued and the Plaintiff conveyed to Rove Prison.

Mr. Averre submits that the remand is unlawful in that the Plaintiff had not been given opportunity to be heard or to make representations regarding his breach of the cash bail requirement. Learned Counsel submits that before a warrant of commitment for remand is issued, the bail had to be rescinded first, and before that can be done, opportunity should first be given to his client to make representations pertaining to the breach of cash bail.

The personal liberty of an individual is protected in our Constitution as one of the fundamental rights and freedoms set out in Chapter II. Section 5(3) provides:

“Any person who is arrested or detained – 

(a)	for the purpose of bringing him before a court in execution of the order of a court; 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 reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released 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.”

The Constitution stipulates that a person not tried within reasonable time “shall be released 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”.

The courts in the country therefore are obliged to ensure that bail conditions imposed are reasonable.

In this particular instance, one of the bail conditions imposed by the presiding Magistrate on 14th September 2003 was for the sum of $200.00 cash to be deposited with the court by 12.00 noon 15th September 2003. This condition was imposed in spite of the obvious fact presented to the presiding Magistrate by the Plaintiff that he had no means of income at his disposal and that his closest relative was unemployed either. I quote from the transcripts of the presiding Magistrate:

“Df (Defendant): I’m happy with the submission by the prosecution. However, I have no way to get money for my cash bail. My closest relative here in town is my sister, but she is not employed, too.”

It is my respectful view that the requirement for cash deposit of $200.00 to be lodged with the court by 12.00 noon 15th September 2003 to be not only unreasonable but to be contrary to the provisions of section 5(3)(b) of the Constitution.

Secondly, the decision by the learned Magistrate who had carriage of the matter to refuse jurisdiction was erroneous in law. The Plaintiff was not seeking to appeal against the bail conditions that had been imposed rather he was seeking to make representations regarding the circumstances of breach and to mitigate his non-compliance so that the learned Magistrate could have a better or more balanced picture on whether he should be remanded in custody for that breach.

Thirdly, it is important to appreciate that whilst in the previous hearings before the presiding Magistrate the Plaintiff had been unrepresented, that was no longer the case. The Plaintiff was now ably represented by the Public Solicitor, Mr. Averre. Learned Counsel Averre felt there was a good case to be presented to the Magistrate regarding the circumstances of the breach of the bail condition and which the learned Magistrate needed to be appraised of before deciding on whether to rescind bail and send his client back to be remanded in custody. 

Unfortunately, the Plaintiff was denied his basic right of being heard and so the decision to send the Plaintiff back to be remanded in custody was made without hearing the Plaintiff or the Prosecution. It was therefore a decision made in clear breach of the principles of natural justice, more commonly known as the “audi alteram partem” rule, “hear the other side”. It was a decision unilaterally taken by the presiding Magistrate. I appreciate though it was done under a mistaken belief that having failed to comply, this warranted the remand of the Plaintiff without further ado. That too was an error of judgment and rendered the subsequent order of the learned Magistrate to remand the Plaintiff in custody unlawful. No man should be condemned unheard. Having granted bail, it being not opposed, it was incumbent upon the presiding Magistrate to ensure that the terms of bail imposed at the outset were reasonable. Having done that, it would then be appropriate in cases of breach for the presiding Magistrate to consider whether bail should be rescinded and whether the breach warranted the return of the accused into custody, bearing in mind that the primary objective of a bail is to ensure the return of the accused at subsequent proceedings. Where however, a term imposed was unreasonable and therefore its breach a foregone conclusion as has happened in this case, it would have been unfair on one hand to penalize the accused for something which he was not able to comply with from the beginning. On the other hand, it would have made little difference if he had not been granted bail from the outset as it was obvious he would not have been able to comply with the condition of cash deposit imposed.

Before the learned Magistrate should decide whether to rescind bail and send the Plaintiff back into custody for breach of or non-compliance with the requirement for cash bail, he was obliged to give the Plaintiff opportunity to make representations regarding the circumstances of his breach or non-compliance. This was the very thing which learned Counsel had sought from the Magistrate’s Court Clerk but was refused. Bearing in mind that the primary objective of bail is to ensure the return or appearance of the accused at subsequent proceedings, sometimes this is achieved by releasing the accused into the custody of another person or persons who in turn become security for his appearance in court. Such persons in law become sureties for the appearance of the accused in court. Sometimes because of impecuniosity an unsecured bail bond may be imposed instead of a cash bail bond. I would have thought that an unsecured bail bond would have been more appropriate in the circumstances of this case.

I am satisfied accordingly that the application for habeas corpus ad subjiciendum against the First and Second Defendant should be granted and the Plaintiff to be released forthwith into the custody of the Public Solicitor Ken Averre. In view of the time factor involved in this case, the Plaintiff is to be produced in court tomorrow Tuesday 23rd September 2003 at 10.00 am for his appeal against the order of the presiding Magistrate to be considered.

On the subject of damages for false imprisonment that can be dealt with in chambers unless a settlement out of court is reached with the Attorney-General.

ORDERS OF THE COURT:

1.	Grant order for a Writ of Habeas Corpus Ad Subjiciendum to be issued forthwith against the First and Second Defendants.

2.	Direct that the Plaintiff Philip Mesa be released forthwith into the custody of his Counsel, Mr. Averre who is required to have the said Plaintiff produced in court on 23rd September 2003 at 10.00 am for his appeal against the order of the learned Magistrate dated 14th September 2003 to be heard.

3.	Issue of damages for false imprisonment to be adjourned to chambers.

The Court.