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Paulsen v Regina [2011] SBHC 159; HCSI-CRC 293 of 2011 (18 November 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

BARNEY PAULSEN

V

REGINA

Date of hearing: 17th November 2011
Date of Judgment: 18th November 2011

The Applicant in person.
Ms. Fineanganofo for the Respondent.

REASONS FOR JUDGMENT

Apaniai, PJ:

1. This is an application by the applicant, Barney Paulsen, for bail pending the hearing of his appeal against his sentence.
   
2. The applicant was convicted on 19th July 2011 by the Central Magistrates Court of conversion under section 278(1)(c)(i) of the Penal Code. He was then sentenced to 2 years imprisonment but with the condition that 15 months of those 2 years be suspended upon the applicant entering into a 2 years good behavior bond in the sum of $500.00. In addition to the above sentence, the applicant was also ordered to pay reparation in the sum of $18,139.00 within 6 months of the applicant's release.
   
3. The 15 months suspension order means that the applicant will serve only a period of 9 months in jail.
   
4. The applicant was not satisfied with the sentence and so, on 2nd August 2011, he filed an appeal against that sentence. There was no appeal against the conviction. Until now, no date has yet been set for the hearing of the appeal against the sentence. The applicant now applies for bail pending the hearing of his appeal.
   
5. The applicant was previously represented by the Public Solicitor's office. When the case was mentioned on 28th October 2011, the applicant informed the court that he had withdrawn his instructions to the Public Solicitor's office and that he would now represent himself. He then requested the court for bail. However, he was directed by the court to make a formal bail application in writing supported by an affidavit setting out his reasons for seeking bail.
   
6. Pursuant to those directions, the applicant has written a letter to the court dated 31st October 2011 formally seeking bail. Accompanying that letter was a document titled "Affidavit – Bail Application". It appears that the affidavit document was intended to be the affidavit which he was directed to file along with the application. Unfortunately, the affidavit document was not in the proper affidavit form. Hence, on the 4th November 2011, I directed that the applicant file a proper application and supporting affidavits by himself and his surety. They have done so that same day.
   
7. In his affidavit, the applicant has outlined the reasons for seeking bail. Those reasons can be summarized as follows:
   

[a] The applicant now represents himself.

[b] Because he now represents himself, he needs:-

[i] "Disclosure" (which is taken to mean that he needed to retrieve his file from the Public Solicitor's office);

[ii] to have access to the Penal Code (which is not avail in prison);

[iii] to obtain a Psychiatric report from the health authorities (presumably to form part of his appeal submissions);

[iv] 2 other (unnamed) documents (presumably to also include as part of his appeal submissions).

8. The applicant has also stated in his affidavit that he needed his file and access to the Penal Code as well as a medical report and sufficient time to properly prepare his appeal submission and that if he remained in custody he would not have the time nor have access to his file nor have the chance to obtain the medical report. It appears that what the applicant is really saying is that he needed to be on bail in order to prepare himself properly for his appeal.
   
9. Finally, the applicant says in his affidavit that the 9 months custody will lapse on the 17th January 2012.
   
10. This is an application for bail after conviction. There is no question that section 290 of the Criminal Procedure Code ("CPC") gives the High Court discretion to grant bail after conviction pending appeal. However, such discretion must be exercised reasonably and in the light of existing principles relative to granting of bail after conviction. In Susan Tamana v R[1] ("Tamana"), Sir John Muria, CJ, in refusing a similar bail application, said:
    

"It must be pointed out, however, 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 the guiding principle in criminal cases, no longer exists 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".

11. A similar decision was also made in Inito v R[2] ("Inito"). In that case, the court had laid down certain conditions which must be satisfied before an application of this nature can be granted. These conditions are that there is a possibility that the sentence of imprisonment will be set aside entirely or, that the sentence is likely to be served completely before the appeal is heard or, that there are other exceptional circumstances which justify the granting of bail.
    
12. Applying the Inito criteria, I ask myself whether there is a possibility that the sentence of imprisonment will be set aside entirely or whether the sentence is likely to be served completely before the appeal is heard or whether the case has other exceptional circumstances which would justify bail.
    
13. I have had the chance to look through the judgment by the Central Magistrates Court. I have some doubts that the sentence will be quashed entirely. I am also not convinced that there are exceptional circumstances in relation to this case which would justify the granting of bail.
    
14. However, I am satisfied that, having regard to the uncertainty surrounding the listing of the appeal for hearing and the criminal court list for this year and for 2012, which I take judicial notice of, this is a case where it is likely that the sentence will have been completely served before the appeal is heard. Counsel for the prosecution has submitted that since the Magistrate Court records are now with the High Court, a hearing date should be fixed before the 17th January 2012. Unfortunately, whether the listing committee will find the judge, and the time for the judge, to hear the appeal before the 17th January 2012 are matters in regards to which the court cannot speculate.
    
15. For these reasons, the application for bail is granted subject to the following conditions:-
    

[1] That the applicant report to Central Police station every Monday between 8am and 5pm until the hearing of his appeal.

[3] That the applicant and his surety, Pr. Wilson Niuala, pay into court within 3 days from today's date the sum of $1,000.00 as security for the appearance of the applicant at the hearing of his appeal.

THE COURT

JAMES APANIAI
PUISNE JUDGE

^[1] Unreported judgment in CRC No. 15 of 1995
^[2] [1983] SILR 177