Difference between revisions of "Solomon Islands"

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*'''Freedom from punishment'''
 
*'''Freedom from punishment'''
 +
 +
Section 7 of the Constitution states: “No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”
 +
 +
In addition, the Correctional Services Regulations specifies in section 53 that: “No prisoner may be subjected, by way of punishment, to:
 +
 +
a)corporal punishment in any form;
 +
 +
b)the use of instruments of restraint;
 +
 +
c)withdrawal of basic food rations/basic toiletry supplies; or
 +
 +
d)denial of visitation rights or the right to communicate with friends, family, or the religious representative.” 
 +
 
*'''Right to counsel'''
 
*'''Right to counsel'''
 +
 +
Section 92 of the Constitution established the Public Solicitor, whose function is to provide legal aid, advice and assistance to persons in need in such circumstances, and in particular to any person in need who has been charged with a criminal offence. Section 4 of the Public Solicitors Act sets out the particular criterion to be used in the grant of legal aid.
 +
 +
In addition, prisoners have the right to access to legal representatives, including the right to communicate in confidence and privacy (section 40(1) Correctional Services Act).
 +
 +
In R v Lemsatef [1977] 1 WLR 812 Lawton LJ stated at page 815: “It is one of the principles of practice that if a man in custody wants to consult a solicitor he can do so. He is entitled to do at an early stage of the investigation. The only qualification is that he cannot delay the investigation by asking to see a solicitor if the effect of so – asking would be – and I use the words of the rules – to cause ―unreasonable delay or hindrance … to the process of investigation or the administration of justice”. Section 178 of the Criminal Procedure Code states: “Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this code in any such court, may be defended by an advocate.”
 +
 
*'''Right to habeas corpus'''
 
*'''Right to habeas corpus'''
 +
 +
Pursuant to section 312 of the Criminal Procedure Code, the High Court has the power to issue direction of the nature of habeas corpus, specifically:
 +
 +
(a)that any person within the limits of Solomon Islands be brought up before the court to be dealt with according to law;
 +
 +
(b)that any person illegally or improperly detained in public or private custody within such limits be set at liberty;
 +
 +
(c)that any prisoner detained in any prison situate within such limits be brought before the court to be examined there examined as a witness in any matter pending or to be inquired into in such court;
 +
(d)that any prisoner detained as aforesaid be brought before a court martial or any commissioners acting under the authority of any commission from the Governor-General for trial or to be examined touching any matter pending before such court martial or commissioners respectively;
 +
 +
(e)that any prisoner within such limits be remove from one custody to another for the purpose of trial; and
 +
 +
(f)that the body of a defendant within such limits be brought in on a return of cepi corpus to a writ of attachment.
 +
 
*'''Conditions of confinement'''
 
*'''Conditions of confinement'''
 +
Publishing in progress!!
 
*'''Immigrant detention'''
 
*'''Immigrant detention'''
 
*'''Right to medical and mental health care in prison'''
 
*'''Right to medical and mental health care in prison'''

Revision as of 16:40, 21 June 2012

ADDITIONAL RESOURCES

Background

The Solomon Islands are a group of islands located in the South Pacific Ocean. They fell under British Protectorate in the 1890s. Prior to independence (7th July 1978) the statute law that applied in Solomon Islands came from the United Kingdom. Upon independence the Constitution of Solomon Islands became effective and the legality of statute law which applied in Solomon Islands prior to that date was not affected provided it was not inconsistent with the Constitution, (see sections 4 and 5 of The Solomon Islands Independence Order 1978). The Constitution forms the schedule to the Solomon Islands Independence Order 1978 and become the supreme law of the Solomon Islands when that order came into operation. The government qualifies as a parliamentary democracy.

Type of system

Solomon Islands inherited the Common Law tradition, which is derived from English Law. In the common law system, case law (decisions of courts) are an important source of law and expression of legal rules, as decisions become precedent for future interpretation of the law by judges in the same or lower courts. While laws are enacted by the legislature, these are interpreted by the courts.

The system of law in Solomon Islands is an adversarial legal system – the prosecution and defence present their cases to a court for a determination. Courts may indicate issues or points, or raise questions to clarify but it must not do the work of one side (R v Kwatefena [1983] SILR 106; 107).

The duty of the court is to be impartial, hear the evidence on both sides, weigh the evidence and decide the case on its facts (R v Niger Pitisopa (Unrep. Criminal Appeal Case No. 120 of 1999), page 10).

Sources of Defendant's Rights

The sources of criminal law in Solomon Islands currently are as follows:

  • Constitution

The Constitution is the preeminent source of an accused’s rights in the Solomon Islands. The constitutional provisions related to the defendant’s rights are mentioned below.

  • Statutory Law

There are two sources of statute law which are applied by Solomon Islands courts: Acts of the Solomon Islands Parliament, and particular Acts of the Parliament of the United Kingdom. Relevant acts referred to include: Court of Appeal Act - Cap 6

Criminal Procedure Code - Cap 7

Correctional Services Act 2007

Correctional Services Regulations 2008

Deportation Act - Cap 58

Evidence Act 2009

Immigration Act - Cap 60

Juveniles Offenders Act - Cap 14

Land and Titles Act - Cap 133

Local Courts Act - Cap 19

Magistrates Courts Act - Cap 20

Penal Code - Cap 26

Police Act - Cap 110

Public Solicitors Act - Cap 30

  • Common Law

As described earlier, the Solomon Islands follows the common law tradition, and therefore case law is another source of defendants’ rights. The principle of law in Solomon Islands is that a point of law is decided in a case before the superior courts, binds the lower courts when the lower courts have to consider that point of law in cases before them. However, those courts are only bound to follow the ratio decidendi (the rule of law on which the decision is based) of the respective judgment. However, during the course of a judgment a Court may make judicial comments which do not form part of the legal reasoning in the case. Such comments are referred to as obiter dictum and are not binding on other courts.

  • Customary Law

Customary law is refered to in Schedule 3(3) of the Constitution. In Remesis Pusi v James Leni & others (Unrep. Civil Case No. 218 of 1995) Muria CJ stated: “The Constitution itself recognizes customary law as part of the law of Solomon Islands and its authority therefore cannot be disregarded. It has evolved from time immortal and its wisdom has stood the test of time. It is fallacy to view a constitutional principle or a statutory principle contained in customary law. It is the circumstances in which the principles are applied that vary and one cannot be readily substituted for the other.”

Pre-trial Phase

Protection from police

  • Identity checks

The police have no general powers to conduct identity checks. However, once a person is in lawful custody, any police officer may cause to be taken, for use and record in the registry of the Force, photographs, descriptions, measurements, fingerprints, palm-prints and footprints of any person in lawful custody for any offence punishable by imprisonment, whether such person has been convicted of such offence or not (Section 22(1) Police Act).

  • Right to silence

The Constitution states: “No person who is tried for a criminal offence shall be compelled to give evidence at the trial” (see section 10(7)). In R v Sang (1979) 69 CrAppR 282; [1980] AC 402 [[1979] 3 WLR 263; [1979] 2 AllER 1222; [1979] CrimLR 282] Lord Scarman stated at pages 308 & 455 respectively: “[The right to silence means]‖No man is to be compelled to incriminate himself”. It has been held that a failing by police to warn the accused that he has a right to be silent is a breach of section 10 of the Consitution (R v Nelson Keaviri, Julius Palmer, Patrick Mare Kilatu, Keto Hebala & Willie Zomoro (Unrep. Criminal Case No. 20 of 1995 at pages 8- 9, where it was said: “The breach of the Rule as I see it in this case is not just a defect in the wording of the warning but a fundamental omission in the warning itself which has an impact on the fundamental rights of the accused to remain silent.”) In Kim Kae Jun & the Crew of the Vessel No. 1 New Star v The Director of Public Prosecutions and the Commissioner of Police (Unrep. Civil Case No. 423 of 1999) Palmer J stated at page 4: “The right to remain silent is a constitutional right to which everyone in this country is entitled, citizens and non – citizens alike. Section 3 of the Constitution guarantees the protection of the right to life, liberty, security of the person and protection of the law. Although not specifically mentioned, that provision, in its broad application, must accord a right to silence to an accused, detained person or a suspected person who is under investigation. Once such person exercised his or her constitutional right to remain silent he or she cannot be compelled to give his statement to anyone unless otherwise ordered by the Court.” In Awoda v The State [1984] PNGLR 165 the Supreme Court held: “In criminal proceedings the court may request but cannot order counsel to disclose his/her defence”.

  • Confessions

The Evidence Act 2009 states that confessions (an admission made at any time by a person accused of an offence stating or suggesting that the person committed the offence) are not admissible unless the court is satisfied beyond reasonable doubt that the admission was voluntary (section 168(2)).In addition, pursuant to section 169, a court may refuse to admit a confession if it is adduced by the prosecution and the court considers it would be unfair to an accused to use the evidence.

  • Stops and Frisks, Search and Seizure

Section 9 of the Constitution states: “(1) Except with his consent, no person shall be subject to the search of his person or his property or the entry by others on his premises.” However the Constitution provides that there will be no inconsistency with the Constitution if the law makes provision for searches in the interests of defence, public safety, to protect the rights or freedoms of others, to authorize an officer of the Government, to carry out court orders or to carry out investigations. Section 84(3) of the Penal Code states: “Any police officer who has reason to believe that a weapon is being concealed or carried on any person or vehicle in a restricted area or place may, without warrant or other written authority, search and detain any such person or vehicle and take possession of such weapon.”

Sections 14 to 17 of the Criminal Procedure Code provide for search and seizures of arrested people or suspects. Section 14 states that a person may be searched upon arrest, provided that there are reasonable grounds for believing that the arrestee has about his person any article or object related to the offense which he is alleged to have committed. However “the right to search an arrested person does not include the right to examine his private person”. Any property which has been taken shall be restored if the person is released and not prosecuted. Section 15 deals with searches and seizures in connection with offenses against the customs laws.

There are additional provisions relating to females who are searched. Section 16 of the Criminal Procedure Code provides that the search shall be made by another woman.

Common law holds that when conducting a search police officers should explain to the person to be searched the reason for the search, unless the circumstances rendered the giving of the reasons unnecessary or impracticable (Brazil v Chief Constable of Surrey [1983] 1 WLR 1155 & Lens v King [1988] WAR 76). Furthermore, the extent of any search must be reasonable, having regard to the circumstances that exist for the search at the time (Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] 1 QB 952 at pages 965 – 966).

  • Arrest

Section 5(1) of the Constitution makes it clear that a person’s liberty is to be deprived only where it is authorized by law, which is to apply in such circumstances as set out in paragraph (f). Section 5 of the Constitution sets out the general structure or framework in which a person’s liberty may be deprived, while acts like the Criminal Procedure Code contain more specific details. (Baia Takoa v R (Unrep. Criminal Appeal Case No. 16 of 1998) at page 2).

One of the key protections in the Constitution is that a person is to be informed as soon as reasonable practicable of the reasons for the arrest or detention (section 5(2) of the Constitution). As stated in Billy Gatu v R (Unrep. Criminal Case No. 93 of 1993), the reason why it is important to inform the accused why he has been arrested is because the lawfulness of that arrest and subsequent detention is dependent on the reasons for the arrest. An arrest and subsequent detention of any person can only be effected in accordance to law. Section 5(1)(f) of the Constitution allows a police officer to arrest and detain an accused person ―upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands.

At the time of the arrest, a police officer need not have to know or be able to specify the specific details of the particular offence for which he/she had in mind (Chapman v Director of Public Prosecutions (1989) 89 CrAppR 190; [1988] CrimLR 843). At the time of advising the defendant the reason he/she was arrested, the arresting officer needs only to advise the defendant the reason why he/she was arrested by outlining what the defendant did or did not do that was illegal (see Abbassay & another v Commissioner of Police of the Metropolis & others [1990] 1 WLR 385; [1990] 1 AllER 193; (1990) 90 CrAppR 250). If such information is not provided at the time of arrest, it is to be provided “as soon as reasonably practicable” at the police station (see R v Kulynycz [1970] 3 AllER 881; [1970] 3 WLR 1029; [1971] 1 QB 367; (1971) 55 CrAppR 34).

  • Enforcing the rules (exclusionary rule, nullity and other procedures to protect against illegal police procedures)

Section 138 of the Evidence Act provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to an accused. In addition, the court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party or be misleading or confusing (section 137 Evidence Act). Furthermore, evidence obtained improperly or in contravention of any law; or in consequence of an impropriety or of a contravention of any law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained (section 170 Evidence Act).

  • Lineups and other identification procedures

A number of identification procedures are provided for in Solomon Islands legislation, being: a)an identification parade; b)a photo board containing at least 12 photos of people of similar appearance, 1 of whom is the person suspected of having committed the offence; c)videotape; d)computer generated images. The procedures for each of these identification procedures are set out in section 81-86 of the Evidence Act. Particular protections include that each witness must view the identification parade separately, the suspect may choose and change his/her position in the parade, a legal practitioner may be present during a parade, must ensure that no photographs are marked on a photo board. In addition, voice identification evidence is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made were likely to have produced a reliable identification (section 86 Evidence Act).

During detention

  • Freedom from prolonged pre-trial detention

A person arrested for a charge other than murder or treason, is to be brought before court within 24 hours, or be released (unless the offence is for murder or treason). Where any person is retained in custody he shall be brought before a Magistrate's Court as soon as practicable (Section 23 Criminal Procedure Code).

In addition, the Constitution states that every person shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. An accused must have adequate time and facilities in order to prepare his defense (see sections 10(1), 2(c) and 10(8) of the Constitution).

If the accused person is not tried within a reasonable time, they are to be released (albeit it with attached conditions if necessary, see section 3 of the Constitution). A detained person can make an application to be granted bail. If this is unsuccessful, he/she has the right to appeal to the High Court (see section 283 of the Criminal Procedure Code).

There is also a common law presumption in favour of bail. In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria ACJ held at page 3: “The common law presumption of innocence is embedded under the Constitution of Solomon Islands and it is done without qualification […]. Thus prima facie, an accused person is entitled to bail.” In John Mae Jino & John Gwali Ta‟ari v R (Unrep. Criminal Appeal Case No. 172 of 1999) Palmer J held at page 1: “Bail is a right protected by law (section 106 of the Criminal Procedure Code). The granting of bail by the court however is discretionary. That means it is not to be unreasonably withheld.”

The Court will consider:

- Whether the defendant will abscond on bail (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- The nature of the accusation or ‘seriousness’ of the alleged offence (R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995)

- The nature of the evidence to be adduced (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- The severity of the punishment which conviction would entail (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- Whether the defendant will interfere with prosecution witnesses and police investigation (Perfili v R (Unrep. Criminal Case No. 30 of 1992)

- The possibility of a repetition of the offence or of further offences (R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991)

- The length of any delay (R v Perfili (Unrep. Criminal Case No. 30 of 1992)

- The family needs of the defendant (R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995)

Generally on a fresh application for bail the Court should only consider any new considerations which were not before the court on the previous occasion when bail was refused (see R v Nottingham Justices, Ex parte Davies [1980] 2 AllER 775; [1981] QB 38; (1980) 71 CrAppR 178; [1980] 3 WLR 150).

Prisoners are also to be placed in the least restrictive conditions suitable to their classification (section 32 of the Correctional Services Act).

  • Freedom from punishment

Section 7 of the Constitution states: “No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.”

In addition, the Correctional Services Regulations specifies in section 53 that: “No prisoner may be subjected, by way of punishment, to:

a)corporal punishment in any form;

b)the use of instruments of restraint;

c)withdrawal of basic food rations/basic toiletry supplies; or

d)denial of visitation rights or the right to communicate with friends, family, or the religious representative.”

  • Right to counsel

Section 92 of the Constitution established the Public Solicitor, whose function is to provide legal aid, advice and assistance to persons in need in such circumstances, and in particular to any person in need who has been charged with a criminal offence. Section 4 of the Public Solicitors Act sets out the particular criterion to be used in the grant of legal aid.

In addition, prisoners have the right to access to legal representatives, including the right to communicate in confidence and privacy (section 40(1) Correctional Services Act).

In R v Lemsatef [1977] 1 WLR 812 Lawton LJ stated at page 815: “It is one of the principles of practice that if a man in custody wants to consult a solicitor he can do so. He is entitled to do at an early stage of the investigation. The only qualification is that he cannot delay the investigation by asking to see a solicitor if the effect of so – asking would be – and I use the words of the rules – to cause ―unreasonable delay or hindrance … to the process of investigation or the administration of justice”. Section 178 of the Criminal Procedure Code states: “Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this code in any such court, may be defended by an advocate.”

  • Right to habeas corpus

Pursuant to section 312 of the Criminal Procedure Code, the High Court has the power to issue direction of the nature of habeas corpus, specifically:

(a)that any person within the limits of Solomon Islands be brought up before the court to be dealt with according to law;

(b)that any person illegally or improperly detained in public or private custody within such limits be set at liberty;

(c)that any prisoner detained in any prison situate within such limits be brought before the court to be examined there examined as a witness in any matter pending or to be inquired into in such court; (d)that any prisoner detained as aforesaid be brought before a court martial or any commissioners acting under the authority of any commission from the Governor-General for trial or to be examined touching any matter pending before such court martial or commissioners respectively;

(e)that any prisoner within such limits be remove from one custody to another for the purpose of trial; and

(f)that the body of a defendant within such limits be brought in on a return of cepi corpus to a writ of attachment.

  • Conditions of confinement

Publishing in progress!!

  • Immigrant detention
  • Right to medical and mental health care in prison
  • Restriction of rights
  • Women's rights in prison

Rights of the Accused

At Trial

  • Double jeopardy
  • Legality principle
  • Presumption of innocence
  • Standards of proof and standards for conviction
  • Right to compulsory process
  • Right to confront witnesses
  • Right to counsel
  • Right to a fair trial
  • Right to notice of charges
  • Right to non self-incrimination
  • Right to a speedy trial
  • Right to trial by jury

In Sentencing

  • Capital punishment
  • Ex post facto punishment
  • Freedom from torture, cruel or unsual punishment
  • Right to appeal
  • Right not to be fined excessively

Court Procedure

Pretrial procedure

In Trial

Sentencing

Appeal