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Selulo v R [2010] TVHC 3; Criminal Appeal 01 of 2010 (25 May 2010)

In The High Court of Tuvalu
At Funafuti

Criminal Appellate Jurisdiction
HC Cr App 1/10

Between:

Pato Selulo
Appellant

v

R
Respondent

I Isala for appellant
E Apinelu for respondent

Hearing: 20 May 2010
Judgment: 25 May 2010

Judgment

1.The appellant is charged with murder and appeals from a decision of the learned Senior Magistrate on 15 March 2010 declining to hear an application for bail. The application was renewed on 26 March 2010 and was again not considered. The Senior Magistrate pointed out that his refusal was because the terms of sections 23 and 106 of the Criminal Procedure Code do not allow bail to be granted in cases of murder and treason.

2. The grounds of appeal are;

1. That the learned Senior Magistrate failed properly to consider that the appellant was entitled to bail
   
2. That the learned Senior Magistrate was wrong in law, when he failed to hear the bail application, to determine, when the proof is evident or the presumption so strong, not to allow bail.
   

3.Counsel for both parties have made a joint submission because, as they explain, the respondent "concurs that there is a right to bail and that the Senior Magistrate erred in law by not accepting to hear the bail application". Whilst they cast their net far wider than necessary by reference to the Constitution and the Universal Declaration of Human Rights, neither of which give an unrestricted right to bail, counsel are clearly correct in their basic assertion that there is a right to bail in cases of murder and treason.

4.It is correct that sections 23 and 106 of the Criminal Procedure Code both place a restriction on the granting of bail to anyone charged with murder or treason. By section 23, a police officer of or above the rank of sergeant or an officer in charge of the police station has the power to enquire into any case where the accused has been taken into custody without warrant and, unless the offence appears to be serious, he may release the accused on bail. If the case cannot otherwise be brought before a magistrate within 24 hours, he must consider bail. However the section is limited to any offence other than murder or treason.

5. Similarly section 106(1) allows bail to be granted to a person arrested or detained without warrant by a police officer or who appears or is brought before any court. Again there is a specific exclusion of cases of murder and treason. However, subsection (3) provides:

(3) Notwithstanding anything contained in subsection (1), the Senior Magistrate or the High Court, as the case may be, 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.

6. The restriction on the power of police officers or magistrates to grant bail in those cases is a remnant of the position when those two offences carried a mandatory death penalty. It was considered that bail in such cases should be granted only by the higher courts. Tuvalu has created the position of Senior Magistrate between the Magistrates’ Court and the High Court. The qualifications for the position are considerably higher than those required for magistrate and the jurisdiction is substantially enhanced from that of a magistrate.

7. The seniority of the position has been recognised by the legislature by also giving the Senior Magistrate some of the powers previously limited to the High Court such, for example, as the power to deal with contempt under section 6 of the Magistrates’ Courts Act.

8. It is apparent that the intention of sections 23 and 106 is not to prevent bail in cases of murder and treason but to restrict the power to grant it to the High Court and the Senior Magistrate’s Court.

9. Anyone charged with either of those offences who wishes to seek bail may apply to either the Senior Magistrate or the High Court. In normal circumstances, the first application should be to the Senior Magistrate's court until the case has been committed to the High Court for trial.

10. The appeal is allowed and the case remitted the Senior Magistrate with a direction to hear the application for bail as soon as is reasonably possible.

Dated: 25th day of May 2010

Hon. Gordon Ward
CHIEF JUSTICE