Regina v Tahea [1996] SBHC 3; HC-CRC 014 of 1995 (29 January 1996)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 14 of 1995

REGINA

v

PHILIP TAHEA, AMOS TEIKAGEI, DAMARIS TEIKAGEI

Hearing: 26 January, 1996 - Ruling: 29 January, 1996

Counsel: T. Kam Applicant - F. Mwanesalua for Prosecution

PALMER J:

p>

The accused Amos Teikagei has been charged together with Philip Tagea for the murder of Wesley Tenoika. The Court records of the Magistrates Court showed that they had been remanded in custody as far back from March of 1995.

This is an application by summons filed on 20 December, 1995, for bail. The power of this Court to grant bail is discretionary and is contained in section 106(3) of the Criminal Procedure Code, giving the High Court only, in a charge for murder or treason, the discretion to grant bail or not. On the first point raised before this Court therefore as to whether this Court does have the power to grant bail or not on a charge for murder, the answer must be given in the affirmative.

In exercising the Court's discretion as to whether or not to grant bail, a number of factors should be considered by the Court. These have been summarized in Clifford Chatterton's "Bail-Law and Practice" at page 41 as:

"(i) the nature of the accusation;

(ii) the nature of the evidence supporting that accusation; and

(iii) the severity of the punishment which conviction would entail."

First, the nature of the accusation. The accused has been charged with one of the most serious crimes under the Penal Code; that of murder. This is important to bear in mind because it does have implications one way or another.

Secondly, the nature of the evidence supporting that accusation. There is direct evidence from a key prosecution witness, the wife of the deceased, who was present at the scene and who it appears from statements obtained by the police, directly implicated this accused. This is to be contrasted with the affidavit evidence of the accused's father, Elizah Pongi, who alleges that his son, the accused, was not involved in anyway with the offence and that he was an unfortunate innocent bystander, caught in the middle of a land dispute between two rival parties. With respect, this submission does not add anything further of significance, for the reason that what is raised will obviously be a matter for the trial judge to determine, after hearing the relevant evidence on oath from the parties and after giving opportunity for cross-examination of the witnesses. It may have been different if there had been no direct eye witness account as to what happened that fateful day, or the evidence as submitted by Mr. Mwanesalua, tenuous

Thirdly, the severity of the punishment which conviction would entail. There is only one mandatory sentence on a conviction for murder, that of life imprisonment.

When the above factors are put together then there is strong grounds for not allowing bail.

However, Mr. Kama seeks to submit that there are a number of factors which the Court should consider in favour of bail in the circumstances of this case.

First he referred to the delay in bringing the matter to trial as soon as possible. The accused has been remanded in custody for some ten months or so now. He points out that all investigation have now been completed and that therefore listing for trial should have been done as soon as possible. I do not think there is any dispute as to the concern raised by Mr. Kama. However, there are practical difficulties which one way or another may have affected any earlier listing of this case in 1995; such as availability of court time.

What is important to note now is that a trial date has been fixed for the 26th February, 1995; less than a month away. The accused has spent a better part of his time in custody and now that a trial date has been fixed not more than a month away, it needs to be shown that further remand in custody until that time taking all relevant matters into account would be prejudicial to this accused's interests. With respect, none has been shown.

Another matter, which Mr. Kama seeks to raise for the Court's attention is the fact of close blood affinity of those involved in the murder charge, the victim and prosecution witnesses. He seeks to submit that there is no threat to the life of the accused in that respect if released. With respect, although that may be correct, it overlooks the other factors already raised and the fact that it raises a real risk or a high possibility that there will be interference with the course of justice or prosecution witnesses, if not directly, then indirectly, and especially when it is fairly obvious that there will be a conflict of evidence between prosecution witnesses as against the accused's and their witnesses at the trial proper. In such situations the discretion should not be considered in favour of bail.

Mr. Kama also refers to the denial by the accused as to causing any harm on the deceased or involvement in the commission of the offence. With respect this adds little to the question whether bail should be granted or not, especially where it is clear that there is a conflict with the statements of a key prosecution witness. This is a matter for trial.

As to the point whether the prosecution witness may or may not implicate the accused on trial, is presumptuous at this stage.

Another matter raised is that the accused is a pastor by profession. With respect, that does not take the matter further in view of the state of the prosecution evidence against him. It may be relevant in a different set of circumstances, but not here.

His family needs are unfortunate matters which his wife and other relatives must address seriously. It has not been shown that his wife and children urgently need him; that if he is not released on bail that something drastic will happen to them. It is important that his family seriously address this question now, because if he is convicted of the offence at trial then he will be imprisoned for life.

As to the question of better preparation for his trial, I do not think that the fact that he is in custody will seriously impair that. He has instructed defence counsel in this matter, and I am sure defence Counsel will attend to the preparation of his trial; including requiring all relevant witnesses to be present for the period of the trial.

I am not satisfied bail should be allowed in this matter and the application is denied.

ter">A. R. PALMER,
JUDGE