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Ne'e v Regina [2006] SBHC 8; HCSI-CRC 151 of 2006 (27 April 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 151 of 2006

NELSON NE’E

–v-

REGINA

Date of Hearing: 26th April 2006
Date of Ruling: 27th April 2006

Mr. K. Averre with Mr. S. Lawrence for the Applicant
The Director of Public Prosecution Mr. J. Cauchi with
Mr. M. Hobart and Mr. M. McColm for the Respondent

RULING

APPLICATION FOR BAIL

BROWN, J.: Mr. Nelson Ne’e has come to this court following the Magistrates’ refusal to grant him bail in that court on Monday. In that court the prosecution brief was read out. The brief forms part of the material relied upon by the Crown today.

The applicant has been charged with;

(a) 'Managing an unlawful society'

Short particulars are that the applicant, a recently elected Member of Parliament, on Tuesday, 18th April, following the announcement of the next Prime Minister at Parliament House, did say to the crowd assembled outside the building, in pidgin;-'Dynamitem parliament ia', repeating the words as he drove away, and afterwards the crowd stoned the Prime Minister’s vehicle, members of the Participating Police Force causing injury and loss of 5 government and PPF vehicles by fire. The rioters went on to cause loss and damage by burning and looting the China Town district and other central business district premises. (Contrary S. 67 of the Penal Code)

(b) 'Incitement to cause grievous bodily harm'

Short particulars were included in the brief and expanded on that stated above. (Contrary to Ss. 381, 224 of the Penal Code)

(c) 'Intimidation'

Particulars were related to statements by witnesses of conversations with persons and the applicant who telephoned a particular witness and threatened both the witnesses and the witness’s partner’s safety.

(Contrary S. 231 of the Penal Code)

The Public Solicitor, Mr. Averre appeared for the applicant. His first argument was directed to the special privileges enjoyed Parliamentarians under the Westminster system of government. He suggested that this court should concern itself with the public interest to allow Parliament to function. That frankly must be seen as a paramount consideration especially when this court has before it a person charged with 'managing an unlawful society' alleged to have purposefully disrupted the peace about the Assembly Building so that Parliament was at risk. But Parliament has continued to function as a result of the continued protection afforded the House by the Constabulary, the Participating Police Force and indirectly, the armed forces which are in country to quell mob violence and arson attacks.

It is not sufficient to say the applicant is a Member of the House; he stands on the same footing as other citizens alleged to have broken the law. He is entitled to have his application for bail considered, on established principles notwithstanding any rumours or innuendoes which Mr. Averre says may be circulating about town. With that I agree.

Mr. Averre referred me to the Amnesty International’s Fair Trials manual which at Chapter 1.5 considers the presumption for release pending trial. This manual is not the law in the Solomon Islands, but it does reflect parts of our Constitution dealing with the right of arrested or detained persons. That manual may well be aimed more at particular States which have not developed statutory provisions allowing bails, since there was no historical common law right. But here, the law expressly provides, by legislation, for bail. There is a danger by referring to this manual, that the ordinary Solomon Island citizen may be misled into thinking the laws of the Solomon Islands are deficient in not allowing it’s citizens rights afforded persons else-where, but that is not the case. Our laws do afford our citizens the right to bail in appropriate circumstances.

For a simple expositions of those parts of the Constitution and subordinate laws, my brother judge, Goldsbrough J. in Philip Saiga Kwaimani v. Regina (unreported HC CRC 318 of 2004 ruling of 8th September 2005) sets out the relevant sections of the Constitution and Legislation, and discusses, at 4, a material consideration, 'a charge of circumstances' in the context of contemporaneous events following upon the earlier magistrate’s refusal to grant bail. Despite Mr. Averre’s assertion that this court should deal with this application, as a hearing de novo, he cannot be seen to mean that the fact of the Magistrates refusal should be ignored when that court is a court of record. The reasons for refusal are before me.

This court has a power to hear this bail application unfettered by the Magistrates refusal. That power is to be found in S. 106 of the Criminal Procedure Code.

A proper reading of sub-section 3:-'(3) Notwithstanding anything contained in sub-section (1), the High Court may in any case direct that any person be admitted to bail or that the bail required by a Magistrates Court or Police Officer be reduced'- when addressing the phrase 'may in any case direct that any person be admitted to bail', means it should be given ambulatory operation (R v. Young (1999) 46 M S W L R 681), to enable the Code to cover the field of bail. I do not agree with my brother judge Goldsbrough J. however, where he reads in aid S. 84 of the Constitution – High Court’s jurisdiction to supervise criminal proceedings before any subordinate court – when the intention of the section, in my view cannot be extended to interfere with the Magistrates power to with-hold bail in appropriate circumstances. But this court may take a fresh look and has an unfettered discretion.

Bail is specifically dealt with in the Criminal Procedure Code. If that Code is not exhaustive of this Courts powers, reference may be had to extended powers of the High Court of England to grant or to vary conditions under which a person has been admitted to bail conferred by the Criminal Justice Act 1967, S. 22 sub-section (1) and (2) of which, as amended by Schedule 2 to the Bail Act 1976 (in force on 17 April 1978), provides as follows:-

'(1) Where an inferior Court with holds bail in Criminal Proceedings or imposes conditions in granting bail in Criminal Proceedings, the High Court may grant bail or vary the conditions.

(2) Where the High Court grants a person bail under this section it may direct him to appear at a time and place which the inferior court could have directed and the recognizance of any surety shall be conditioned accordingly'.

(Solomon Islands Constitution Schedule III)

I consequently am of the view that speaking of a hearing de novo is in the circumstances of a bail application to the High Court after refusal in the lower court wrong and may lead this court into error. Such an application to this court is not by way, or in the nature of an appeal (giving rise to the use of the term, de novo) from the decision of the Magistrate, rather it stands independently and falls within the jurisdiction of this court under s. 106 (3) of the Criminal Procedure Code.

Nevertheless, it is encumbent on this court to explain why it should depart from the Magistrates refusal if, in this courts discretion, it appears just to do so.

Those matters, Mr. Averre argues may be grouped into 3 categories.

1. Whether or not is probable that the accused will appear in court on his trial.
   

2. The risk or threat to witnesses

3. The interests of the General Public.

I propose to deal with them in reverse order since it will be apparent the 1st is not such an issue having regard to the seriousness of the other two.

3. I’m satisfied, that the public interest is best served by allowing these very serious charges which may be said to call in question and relate to this applicants’ suitability to serve as a parliamentary member, to be heard and decided by the law courts, but that since the particulars of the offences of 'managing an unlawful society' relate directly to a threat to destroy the very Parliamentary Chamber in which he claims right to sit, such right must be subordinated to the right of the public to have these charges heard and determined, whilst he remains in custody. The Magistrate in his reasons says the words alleged 'Dynamitem Parliament ia' is 'unparliamentarily to say the least'. He logically says 'the riot started at Parliament, ran to the street, then to China Town'.
   

We have seen the result. The public interest to see Parliament sit, free from chaos and threats of this nature, is greater than the individual’s right to expect to sit in the very Chamber he is alleged to have threatened to destroy. So the charge is particularly serious, and it would I suggest, be perverse for the public interest to expect a right to bail in one who has been alleged to have threatened the very institution which disciplined forces are now obliged to protect.

2. The Director of Public Prosecutions has strongly argued against Mr. Averre’s submission that the Crown 'cannot point to any act or otherwise to substantiate this allegation' (about the risk to witnesses).
   

Mr. Cauchi read extensively from witness statement in the police brief tendered in the court below to illustrate the strength of the Crown case. Those witness statements speak of threat by this applicant to have beheaded 5 particular persons; to have 'their necks chopped off'. This applicant is from West Are Are and the witness who recounted the threat understands the language, custom and nature of the threat. The witness expressed fear. I am satisfied it is justifiable having read all the material in the police brief and taking into account the custom underlying the threat. I am not willing to neither quote from nor identify the particular persons in these reasons for I believe were I to do so, this court may exacerbate the fear and apprehension already expressed by these witnesses and may cause grief to others so threatened. I am particularly mindful of the positive obligation in the Constitution – the right to life, liberty and security of the person – resting on the State, as it affects these persons. Having regard to the particular nature of the threats made to the witnesses and the fact that others attended premises apparently at the behest of this applicant, I am left in no doubt the applicant has people at his command as befits 'his status', a term of some nicety.

There has not been shown to be error on the part of the Magistrate where he recorded his ruling.

In any event, I am not satisfied I should exercise my discretion and allow bail. Bail is refused. The applicant is remanded in custody to appear before the Magistrates Court, at the time and place appointed by that Court.

THE COURT