HCSI-CRC 591-04

High Court of Solomon Islands
Criminal Case Number 430-04

Malcolm Lake

-v-

Regina

(Palmer CJ)

Hearing: 18th February 2005
Judgement: 22nd February 2005

Ms. Bird for the Applicant
J. Cauchi (Director of Public Prosecutions) for the Respondent

Palmer CJ: The Applicant is charged with five others for the murder of Selwyn Saki ("the Deceased") on 22nd September 2001 at Mount Austen. He has also been charged with eight others for abduction and wrongful confinement contrary to sections 250 and 252 of the Penal Code. He was arrested on 24th December 2003 and has been in custody for some 14 months now. 

The prosecution case essentially is that he was seen at Mount Austen at the relevant time by a number of witnesses who have provided statements to that effect. These included statements from a co-accused Jackson Olea, Robert Maelaua, John Tua and Tony Baura. Whilst I accept submissions of learned Counsel for the Applicant, that the statement of a co-accused is inadmissible as against this Applicant1, unless either expressly or by implication he adopts the statements and thereby makes them his own, the statements of other witnesses directly implicate the Applicant in the murder of the Deceased.

The Applicant was described in those witness statements as the person delivering the order of the Malaita Eagles Force Supreme Council ("MEF Council") to kill the Deceased. The statements of witnesses implicating him included hearing him say words to the effect that the Deceased was to be killed. The Prosecution case is that apart from one other co-accused, he was identified as the person who gave the specific directions to others to have the Deceased killed. Had he not persisted in this, it appears the Deceased may not have been killed. The statements of witnesses at its highest place him as playing a crucial role at Mount Austen regarding the decision to have the Deceased killed. All witness statements indicate that the shooting was done in compliance with the directions given, of which this Applicant was instrumental in giving. There is also clear evidence which implicate this Applicant as a member of the MEF Council and therefore in an influential position regarding the enforcement of orders or directions from the Council.

Whilst the right to bail is provided for under section 5(3) (b) of the Constitution and section 106 of the Criminal Procedure Code ("CPC"); see also the case of R v. Perfili2, where the charge is murder or treason, section 106 of the Criminal Procedure Code makes clear that it is only exceptionally that bail is granted3. The Applicant to that extent is obliged to show, that exceptional circumstances exist, which warrant the granting of bail. In the absence of such, bail normally would be refused.

Matters sought to be relied on by the Applicant include excessive delay in the listing of this case, strength of Prosecution case, apart from the usual considerations regarding the provision of a satisfactory surety, family circumstances and place of residence.

On the issue of delay, it is not uncommon to have persons charged with serious offences remanded for up to two years in certain instances whether in this jurisdiction or other jurisdictions. I do not think it can be suggested and has not been raised by learned Counsel for the Applicant that the delay is unreasonable. I recognise that the delay in this case has been somewhat unfortunate in that whilst the information was filed back in September 2004 it was never included in the Call-over lists. That is now being addressed and this case has now been given a call over date for the 4th March 2004. I will undertake to give this case priority in listing for later this year.

On the issue of strength of prosecution case, taken at its highest it is from three eye witnesses. Jackson Olea’s statement at this point of time cannot be relied on to implicate the Applicant. If he chooses to give evidence however, anything he says will become evidence in the case. If he maintains his version contained in his statement, his evidence will implicate the Applicant. In contrast, some reliance has sought to be placed on Mose Suu’s statement. The same rule of admissibility however applies. Of-course if he gives evidence consistent with what he says in his affidavit, it will contradict other witnesses statements and will be in his favour. As at this point though, it cannot be said that prosecution’s case is weak.

I take into account the family circumstances of this Applicant and his business interests, and accept these will and have been adversely affected by his remand. I also take into account submissions urged upon me about his place of residence and the provision of a number of sureties if released on bail. It has also been urged upon me to treat this case as falling along the same or similar lines to the case of Regina v. Leslie Kwaiga4. Unfortunately I do not agree this case falls on all fours within that case. On the strength of prosecution’s case, the potential evidentiary material against the Applicant in this case would appear to be stronger or more direct and specific about his involvement when contrasted with the case against the co-accused Leslie Kwaiga ("Kwaiga"). The most that witness statements have said regarding Kwaiga was that he was also present at Mount Austen, that he was seen conversing with this Applicant, Moses Su'u ("Su'u") and Jimmy Lusibaea ("Lusibaea"). These accounts came from Tony Baura and Austin Kuilako. Su’u and Lusibaea however have not been jointly charged with the murder of the Deceased. Kwaiga and this Applicant have been charged with the murder of the Deceased. There is no direct statement or material however linking them together about giving any orders for the killing of the Deceased. The only material available is linked to this Applicant.

Su'u and Lusibaea however have only been charged with the abduction and wrongful confinement of the Deceased. If it is contended and it may be part of the Prosecution case that the orders to kill the Deceased came from the MEF Council or some of the members of that Council then I would have expected at least Su'u and Lusibaea to have been included in the murder charge. The difficulties prosecution may face and I say this reservedly, without having access to any material or indications to that effect before me in this case, lie in the fact that there is no direct material consistent with any common conspiracy or plan or decision to order the killing of the Deceased coming from that Council apart from allegations of having been seen talking together at Mount Austen on that day. In contrast there are direct statements from Robert Maelaua and John Tua implicating the Applicant as being directly responsible for the orders or directions which eventually resulted in the Deceased having been taken away by others and shot. I do not think it would be appropriate therefore to place this case on all fours with Kwaiga's case.

The stakes and the risks to the public if allowed on bail cannot be described as having been eliminated or minimised by this application and exceptional circumstances sufficiently demonstrated which would warrant the granting of bail in this case. Bail accordingly is denied and I so order.

The Court

1. See Regina v. Rudd (1948) 32 Cr. App. R. 138; R. v. Gunewardene (1951) 35 Cr. App. R. 80; R. v. Rhodes (1959) 44 Cr. App. R. 23.
2. (unreported) HCSI-CRC 30-92 per Muria ACJ at p.3
3. R. v. Kong Ming Khoo (Unrep.) Criminal Case of 1991 per Ward CJ at page 2. 
4. R. v. Leslie Kwaiga 333-04 9th August 2004.