Posted by Hiuare on 15/5/2006, 3:56 pm, in reply to "Re: 2 Ministers Bail" 2. In response to the above, in Solomon Islands, reliance on bail application to any accused is still made under the common law. In essence, there are no specific or strict guidelines to assist the Court in determining bail. However, the general guideline which the court is bound to observe is to balance the common law right to bail with the fundamental rights that afforded to any accused under the SI Constitution. Judge Brown's test of discretion is one of many that the Constitution commits the Parliament and Courts to develop with regards to the development of bail laws in SI. 3. The issue of whether the Magistrate had exercised that discretion objectively or just, is always unsafe to accept since it is an open ended test. 4. For this matter, how much weight the Magistrate had placed upon the conflicting evidence submitted in Court? How much weight he placed upon the changing circumstance of the accused as being a Minister of the State? Did the Doctor who provides the medical report was called to Court and examined in order to prove its merit? Did the Magistrate called any experienced doctors to counter or verify that? Did the Magistrate called upon the prison doctors or medical officers whoever that might be responsible for providing specific diagnosis to the accused? Amazing his sugar level was 26 should clearly indicated to the Magistrate that that was a very serious situation and in order to verify that he needs to hear evidence from experience doctors. Also the Magistrate has to be satisfied whether the present medication is appropriate since all human beings the safest sugar level we should have is 4-6. Based on those medical professional opinions, the Magistrate would exercise his discretion? If any of this has not been done, then, what weight the Magistrate had adduced out of the state's evidence to totally ignored the Defence grounds. Because of this, the Magistrate dispensation of his discretionary power in the present case is not seen to be done fairly. 5. This discretionary test is always unsafe to adopt on a case to case basis, therefore, this warrants the State to enact a Bail Act in order to give accused a statutory right to bail. Otherwise, this discretionary test might be influenced by external interferences, which might give rise to the issue of bias etc. 6. In the next coming weeks, it would be interesting to see what test the Court would employ when determining the option of conditional bail pursuant to section 10(3) of the Constitution which states that : “Any person who is arrested or detained who is not released, shall be brought without undue delay before a court, and if any person arrested or detained upon “reasonable suspicion” of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then without prejudice to any other proceedings that may be brought, “against him, he shall be released either unconditionally or upon reasonable conditions including in particular such conditions are as reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. If the accused are kept for the sake of investigations which might deny the accused right to be tried within a reasonable time, a conditional bail must be granted. 7. On a personal note, I am not in any way supporting Mr. Charles Dausabea but always of interest to see that justice is done impartially and fairly by the Courts. Hiuare. W.
202.151.28.44
1. Thank you JAK for that in depth reply which gives greater insight into the present issue of bail.
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