IN THE HIGH COURT OF TUVALU 2022

CRIMINAL APPEAL  01/2020
BETWEEN

			SIOLILO FALENI			APPELLANT

AND

			THE STATE				RESPONDENT

Before			Hon Judge Sir John Muria

Hearing		22nd December 2021

Ms N. Tusipese for the Applicant
Ms L. Teo for the Respondent

JUDGEMENT

Muria J	By his Notice of Appeal dated 8th January 2021, the appellant appeals against the Ruling made by the learned Senior Magistrate on 1st January 2021 in a bail application brought by the accused/appellant.

2.	Despite efforts to have this Appeal heard soonest it was not possible to do  so largely due to the recusal of the Acting Chief Justice to deal with the appeal because he had dealt with the matter earlier.  Additionally, my inability to travel to Tuvalu sooner due to the CONVID 19 pandemic  restrictions in Fiji, did not help to push the matter further.  Be that as it may, the appeal has now been presented and argued before the Court.

The background

3.	In brief, the background facts of this appeal are that the appellant is presently held in custody upon allegation that he murdered one Ioshua Lupi.  The incident resulting in the death of the deceased took place in Nukufetau Island on 15th July 2020.  The appellant was arrested and has been in custody since then.  He now faces the charge of murder over the death of the deceased.

4.	On 31st July 2020, the appellant applied for bail and it was dealt with by the Acting Chief Justice as there was no Senior Magistrate in place at the time.  The bail application was refused.

5.	Following the appointment of the Senior Magistrate, the Acting Chief Justice directed that the Senior Magistrate could consider the issue of bail should the appellant wished to apply for bail.  Consequently an application for bail was made on 15th December 2020.  The learned Senior Magistrate refused the application for bail on 1st January 2021.  The appellant now appeals against the decision of the Senior Magistrate refusing bail.

The ground of Appeal

6.	In his Notice of Appeal, the appellant raises a number of grounds in support of his appeal.  These grounds are as follows:
	
i.	That the Senior Magistrate erred in law and in fact in not considering the correct test to be used by the Court for bail applications;

ii.	That the Senior Magistrate erred in law and in fact in refusing bail by stating that efforts to afford due process is seen to have been done as well accounted for the Applicant’s prolonged and lengthy time in custody coupled with the uncertainty on the next Court dates, as well as leaves the Applicant deprived of liberty because of the failure and/or inaction of the State to afford proper due process of its citizens;

iii.	That while the Senior Magistrate acknowledges and accepts that prison conditions are inhumane and in worse conditions, she still refused bail on the bases that court orders to the Tuvalu Police Service for improvement of prison conditions is sufficient.  An act/orders to the Tuvalu Police Service for improvement of prison conditions is sufficient.  An act/order that is not within the civil nor criminal jurisdiction of the Senior Magistrates Court;

iv.	That the Senior Magistrate erred in law and in fact in refusing bail by stating that current support provided by family members and relatives of the Appellant to his children and heavily pregnant wife is seen to be adequate when no evidence has been tendered for the Court to properly form this opinion;

v.	That the Senior Magistrate erred in law and in fact refusing bail by not considering properly that the safety of the Appellant is not at risk if he’s to be released on bail;

vi.	That the Senior Magistrate erred in law and in fact in ruling that the Prosecution had rebutted the presumption in favour of bail, by taking into account irrelevant considerations;

vii.	That the Senior Magistrate erred in law and in fact in ruling that the Prosecution had rebutted the presumption in favour of bail, by failing to take into account relevant acts and considerations;

viii.	That the Senior Magistrate erred in law and in fact in refusing bail due to possibility of interference with potential witnesses to convenience of text messaging and easy access to internet connection.  A ground of refusal that could have been avoided by the imposition of strict bail conditions;

ix.	That the Senior Magistrate erred in law and in fact in making an adverse ruling and finding that lack of reconciliation efforts been made by the Appellant with the victim’s family to control the level of anger, anxiety and sentiments is prejudicial and incriminates the right of the Appellant to be presumed innocent until proven guilty which is guaranteed under section 22 (3) (a) of the Constitution of Tuvalu;

x.	Any other grounds that the Appellant may wish to rely on.

7.	Bail is an entitlement accorded to the accused person and it is preserved under section 17(5) of the Constitution.  This right to bail is available to the accused person, even in cases of murder or treason, as can be seen under sections 23 and 106(3) of the Criminal Procedure Code (CPC), 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.”

8.	The case of Selulo –v- R [2010] TVH 3; Criminal Appeal 01 of 2010 (25th May 2010) was an appeal against the decision of the Senior Magistrate who refused to hear the appellant’s bail application because he was charged with the crime of murder, relying on sections 23 and 106 (1) of the CPC.  The High Court re reiterated that bail is available to the accused as provided under section 106 (3) of the CPC.

9. 	In the present case, the learned Senior Magistrate heard the bail application but in the exercise of the Courts discretion, she refused to grant bail.  It is against that refusal to grant bail that the appellant now comes to this Court, relying on nine (9) grounds of appeal.

Principles to be applied.

10.	In an appeal against a decision of the Magistrates Court, in criminal cases, the guiding principles to bear in mind are set out in section 280 if the CPC, subsections (1) and (2) of section 280 provide as follows:

“280 (1)    At the hearing of an appeal High Court shall hear the appellant or his advocate, if hi appears and the respondent or his advocate, if he appears, and the High Court may thereupon confirm, reverse or vary the decision of the magistrate’s court, or may remit the matter with the opinion of the High Court thereon to the magistrates court or may make such other order in the matter as to it may seem just, and may be such order exercise any power which the magistrates court may have exercised:
	
	Provided that the High Court may, notwithstanding that it is of opinion that the point raised in the appeal  might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2)   At the hearing of an appeal he High Court may, if it thinks that a different sentence should have been passed, quash the sentence passed by the magistrate’s court and pass such other sentence warranted in law (whether more or less severe) in substitution thereof as it thinks ought to have been passed.
		……………………………”

11.	On hearing the appeal, the principles obtained from the above provisions would obliged the High Court to consider the following namely that:

a.	the matter before the High Court is an appeal and that the exercise of the High Courts power is limited;

b.	it is an application for bail;

c.	the High Court must be satisfied that the Senior Magistrate erred in law, in that she wrongly exercised her discretion;

d.	the High Court, after having been satisfied that the Senior Magistrates was wrong in law, would then decide to reverse, vary or remit the case to the High Court or make such other order as to it “may seem just”;

e.	the High Court may dismiss the appeal if it considers that “no substantial miscarriage  of justice” had actually occurred even if the points raised in the appeal might be decided in favour of the appellant.

12.	The appellant in the present appeal, must satisfy the Court that the learned Senior Magistrate has wrongly exercised her discretion and that substantial miscarriage of Justice has actually occurred as a result.  So the appellant who seeks to invoke the discretionary powers of the High Court in an appeal of this nature must establish two factors namely, that the learned Senior Magistrate committed an error of law by wrongly exercising her discretion in refusing bail, and secondly miscarriage of justice actually occurred as a result of such wrongful exercise of the Senior Magistrates judicial discretion.

	Arguments and Determination

13.	In support of the appeal, Ms Tusipese of Counsel for the appellant, submits in support ground 1, that the learned Senior Magistrate erred in law is not considering the correct test to be used in bail application.  The correct test suggested by Counsel should be whether the accused person would attend trial.  Counsel cited Apelu –v- Regina [2005] TVHC 3 to support the test relied upon.

14.	The test which is said to have been used by the learned Senior Magistrate is “whether there has been material change in circumstances since the time when the earlier application [for bail] was refused.”  I do not consider that the learned Senior Magistrate was there expressing a test for granting bail.  What in fact was done by the learned Senior Magistrate was stating one of the considerations to be taken into account in deciding whether bail should or should not be granted.  The change in the circumstances in a remand facility must surely be a legitimate consideration to take into account.

15.	The case of Apelu –v- Regina affirms the accused entitlement to bail and the presumption of innocent until proven guilty and hence the presumption in favour of bail.  But as that case also recognises, that presumption is rebuttable.  So while entitlement to bail is secured under the law, including section 17 (5) of the Constitution, the grant of that entitlement is not automatically accorded to the accused person.  It is a rebuttable entitlement which rebuttal, if successfully grounded, would disentitle the accused to the grant of bail.

16.	The other part of the argument is that the learned Senior Magistrate was wrong to treat the application for bail before her as a second try for bail by the accused, the first one having	 before the High Court in August 2020.  That was done since no Senior Magistrate was in place and so the High Court had to deal with the bail then.  Upon the appointment of the Senior Magistrate, the High Court directed that an application for bail can be renewed before the Senior Magistrate and which was done.  If that is not to be regarded as a second try for bail, I do not know what else it can be properly called.  The first ground of appeal is rejected.

17.	The second ground of appeal complains of the remarks made by the learned Senior Magistrate where she stated that “efforts to afford due process is seen to have been done, as well as accounted for” in paragraph 11 of her Ruling.  The argument for the appellant is that the Senior Magistrate’s remark lacks specificity and was the effect of depriving the appellant of his entitlement to bail.  The appellant further complains that when the Senior Magistrate’s additional remark that prosecution had “clearly rebutted” the presumption of bail in favour of the appellant, the learned Senior Magistrate was acting without legal and moral basis” and thereby resulting in exercising her discretion unlawfully, unjustly and wrongfully.

18.	While there maybe room for the argument that the Court should not be overly reliant on the process of recruitment of the new Judge of the High Court to affect its effort to have the bail application dealt with, it must be noted that in this particular case, the Acting Chief Justice had recused himself from further dealing with the issue of bail, in particular, with the appeal against the Senior Magistrate’s decision refusing bail.  So the appeal has to wait until the Judge arrived.  But to say that the learned Senior Magistrate acted unreasonably, unlawfully and unjustly when she exercised her discretion to refuse bail knowing that the recruitment process for the new Judge was prolonged, cannot be right.  There were other factors to the taken into account as well, and the learned Senior Magistrate had taken those into account as a whole when she came to exercise her discretion to refuse bail, highlighting those factors in her Rulings.  It is not right and also it is unhelpful to simply pluck out one portion of the remarks made by a Magistrate or a Judge in his or her judgement and conclude from such remarks that the Magistrates or Judge’s decision was wrong in law.  Ground 2 of the appeal cannot be sustained and sit in rejected.

19.	The third ground basically complaints that the learned Senior Magistrate accepted the poor state of prison facilities in which the appellant was recommended yet she still refused bail.  The learned Senior Magistrate in paragraph 11 (ii) of her Ruling accepted the reference made to the Court of “the worse conditions of detention in the remand facilities which were evaluated and found to be true” but she went on to add that the Court would make orders to ensure that the remand facilities were to be repaired and maintained.  The Orders of the Court were set out in paragraph 14 of the Senior Magistrates Ruling.

20.	The exercise of the learned Senior Magistrates discretion refusing bail at the time in my view, cannot be faulted.  Clearly, taking into account all the factors set out in paragraph 11 (i) to (v) in her Ruling, followed by the Orders she set out in paragraph 14, the learned Senior Magistrate refused bail.  It was clearly open to her to decide that bail should be refused.  Ground 3 is rejected.

21.	Ground 4 of the appeal complains that the learned Senior Magistrate was wrong in law and in fact by refusing bail despite the need for the appellant to be released to take care of his family’s needs.  Affidavit evidence from the appellant and his wife set out the needs of the family, especially those of the wife who was pregnant.

22.	No authorities, statutory or otherwise, had been cited by Counsel for the appellant to support the suggestion that the needs of the family is one of the criteria justifying a release of the appellant on bail.  In my view family hardship and needs cannot be the dominant criterion for the accused to be released on bail but is only one, among the several of factors to be considered together in deciding whether bail should be granted or not, to the accused person.

23.	Then there is the suggestion from the appellant that the submission by the prosecution at the bail hearing that the appellant’s wife had the support of her extended family was without evidential basis.  First, that was a submission by the prosecution, and there is no evidence to show that the defence, on behalf of the applicant, made any denial or contrary submission on the suggestion contained in the prosecution’s submission.  To the contrary, the affidavit of the appellant’s wife tacitly acknowledged that she  “can rely on the extended family” support but it was just that she did not want to be an extra burden to them.  So it is not correct to suggest that the prosecution submission was without basis.  Equally it is also not correct to suggest that the learned Senior Magistrate completely ignored the wife’s affidavit evidence and simply relied on the prosecutions submission.  The case of Apelu –v- Regina relied on by Counsel for the appellant does not assist the appellant’s case in the matter now before us. Ground 4 also fails. 

24.	Ground 5 alleged that the learned Senior Magistrate erred in law and in fact by not properly considering the safely of the appellant.  It is submitted by counsel for the appellant that the appellant was not at risk if released on bail.  It is submitted by counsel for the appellant that when the offence was committed the atmosphere among the people on the island, Nukufetau, was emotional and revengeful.  However, by the time, the bail application was heard by the learned Senior Magistrate (SM), the emotions had settled and the appellant’s life was no longer in danger.  The burden is on the appellant to demonstrate that he was safe and that the threats against him in Nukfetau no longer applied in Funafuti.

25.	The Affidavit of his wife recounted the two incidents of threats on her husband’s life while on Nukufetau.  There is, however, no evidence at all before the learned Senior Magistrate that the threats on the appellant’s life on Nukufetau had ended or no longer existed, even if the appellant was here at Funafuti at the time of the bail hearing.  The threats on the appellant’s life in Nukufetau, was enough for the police to act upon and to put to the Court at the time that the safety of the appellant would be secured in remand.  The learned Senior Magistrate was therefore, entitled  to reject the suggestion that all was already well for the appellant to be released on bail in January this year (2021).

26.	Counsel for the appellant sought to draw support from the affidavit of the Acting Commissioner of Police sworn to on 16th October 2021, that the affidavit does not help the appellant in this appeal.  It was sworn to 9 months after the bail refusal was made.  It is relevant only in another matter, which I shall come to later.  Ground 5 must also fail.

27.	Ground 6 and 7 allege that the Senior Magistrate erred in law and in fact when she said that the prosecution had rebutted to presumption in favour of bail in this case.  I have touched on this point in ground 2 of the appeal.  I need not dwell on the point again, save to say that when the learned Senior Magistrate stated that the prosecution “clearly rebutted” the presumption in favour of bail, she was clearly not indulging in some nit- picking over the application of the presumption.  However,  when one looks at paragraph 11 (i) to (v) of the Senior Magistrates Ruling the conclusion she came to that the prosecution clearly rebutted the presumption was a conclusion which she was entitled to come to.  I see no reason to disturb her conclusion.  Ground 6 and 7 are rejected also.
28.	Ground 8 complains that the learned Senior Magistrate erred in law and in fact when she refused bail on the basis of possible interference with witnesses if the appellant was to be released on bail.  The basis for the learned Senior Magistrate’s finding that there was the possibility of interfering with witnesses was basically because of easy access to internet and using internet to send threats through text messages or social media.

29.	Generally, the possibility of using internet to send text messages, whether good or bad messages, always exists.  As such in my view, and for the purpose of bail application, the possibility of using internet by the bail applicant to send threats to witnesses, must be one of a “real possibility” and not simply a general one.  That requires some evidence.  In this case, having looked at the material before the Court, I have to accept the suggestion on behalf of the appellant that there is no evidence to show that there was a real possibility that the appellant, if released on bail would use internet to send threatening text messages to prosecution witnesses.  Ground 8 stands.

30.	Ground 9 and the final ground of appeal states that the learned Senior Magistrate erred in law and in fact in drawing adverse view on the lack of or absence of reconciliation efforts on the part of the appellant with the deceased family.  Understood in the nature and culture of the community that reconciliation is really making peace between the two sides to the trouble, the use of reconciliation should not be taken as admission on the part of the accused person /appellant.  Understood in that context, there can be no criticism of the learned Senior Magistrates remarks on the lack of reconciliation efforts in this case.  So there can be no prejudice to the right of the appellant to be presumed innocent until proven guilty.

31.	Remembering that the remarks were made in the context of bail application and one of the considerations, relevant to bail, is the existence of threats to the safety of the appellant if released on bail.  The burden is on the appellant who seeks to be released on bail to demonstrate that no threats exist against him if released on bail.  It is never to be automatically presumed that reconciliation equates with admission of guilt in criminal cases.  In any case, the appellant has throughout this case been legally advised and represented.  No counsel, in my view would advise his or her client in the context of this case, that a reconciliation effort between deceased’s families and relatives and appellant’s family and relatives, is anything but to bring peace and to cool down passion and emotion while the law takes its course.
32.	Although Ground 8 of the appeal grounds succeeds, in this case, the Court will apply the provision to section 280 (1) and reject the appeal on the basis that other grounds of appeal are all rejected and as such no substantial miscarriage of justice has actually occurred.

	RESULT

33.	The appeal against the Senior Magistrate’s Ruling refusing bail is dismissed.

Dated on the 24th day of December 2021

Sir John Muria
Judge