Taisia v Director of Public Prosecutions [2001] SBHC 73; HC-CRC 266 of 2001 (9 October 2001)

I HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 266 of 2001

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KARA TAISIA

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DIRECTORECTOR OF PUBLIC PROSECUTIONS

Before: Frank O. Kabui, J

Criminal Case Number 266 of 2001

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Hearing: 5^th October 2001 Ruling: 9^th October 2001

DPP for the Crown

Mrs. M. Samuel for the Accused

RULING

(Kabui, J): This is an application for bail by the accused, Karawaisi Taisia, pursuant to section 106(3) of the Criminal Procedure Code Act (Cap. 7). Subsection 3 of section 106 states –

...“Notwanding anything contained in subsection (1), the High High Court 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”...

The accused is currently Police custody after his arrest following the death of Hedley Eddie Mescheck. The The accused is alleged to have caused the death of the deceased on 24^th August 2001. The accused had appeared previously in the Honiara Magistrate Court for the purpose of executing remand warrants for his detention by the Police. The accused was first remanded in custody on 25th August 2001. That remand expired on 7^th September 2001. It was then extended to 21^st October 2001. It was further extended to 5^th October 2001. The present extension will expire on 12th October 2001. These extensions of remand are necessary to accord with section 214 of the Criminal Procedure Code Act. That is to say, remand can lawfully last at any one time for 15 days only after which time, remand must be renewed by the Court to remain a lawful remand. This section also allows the Court to admit an accused to bail whilst on remand.

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The Court has a discretion to grant bail or not to grant bail. This means that granting bail is not automatic on its own. The exercise of the discretion of the Court therefore depends upon the facts of each case before the Court in view of the principles governing bail application in murder cases such as this case. In the first place, a person who is detained by Police in connection with the offence of treason or murder cannot be released by the Police but must be brought to the Magistrate Court as soon as is reasonably possible. This is done under section 23 of the Criminal Procedure Code Act. The reason for non - release of a person held by the Police in connection with treason or murder is that such offences are serious offences. In such cases, bail can only be granted by the High Court. The test to be applied is whether or not it is probable that the accused will appear in Court at the trial date. This test is applied by considering factors such as the nature of the accusation against the accused, the nature of the evidence supporting the accusation, the seriousness of the penalty that may result upon conviction and the availability of sureties as the case may be. (see page 71 of Archbold, Criminal Pleading, Evidence & Practice, 36th Edition by Burtler and Garsia). In this case, the offence in respect of which the accused is being held in custody is murder, obviously a very serious offence. Normally, bail will be refused in murder cases. The reason is obvious. The accused would not wish to face trial on the trial date and so may abscond before the date of the trial. There can however be cases where bail may be granted but only rarely can this be done (see Regina v Kong Ming Khoo (Criminal Case No. 15 of 1991). In this jurisdiction, bail had been granted in R v Alwin Paul (Criminal Case No. 27 of 1997), R v Joachim Wale (Criminal Case No. 21 of 1998), R v John Robu, Henry Faramasi, Lency Maenu'u and Peter Ka'abe (Criminal Case No. 28 of 1998 and R v Dickson Maeni (Criminal Case No. 117 of 1999). In R v Alwin Paul, Palmer J, granted bail on the basis that the evidence against the accused was basically hearsay and circumstantial only and that in all the circumstances His Lordship saw no problem with securing attendance of the accused at the trial and no chance of the accused interfering with Crown witnesses. In R v Joachim Wale, the deceased was the uncle of the accused. Palmer, J. granted bail on the basis of family closeness and the fact the Parish Priest at Tanagai near Kakabona took personal interest in the accused to ensure that the accused would attend his trial and that the accused would not interfere with Crown witnesses. In R v John Robu, Henry Faramasi, Lency Maenu'u and Peter Ka'abe, Palmer, J. granted bail because the situation in the Rove Prison had become unsafe following the event of 5^th June 2000. That is to say that a mass break - out of inmates was imminent and the accused and other persons in the remand cell were affected. It was an extra – ordinary situation at that time. In R v Dickson Maeni, the accused was a Police Officer who had caused the death of a person in a Police operation mounted to arrest persons who had committed firearm offences and theft. Palmer, J. granted bail because the accused was part of an authorised Police operation aimed at arresting armed criminals. His Lordship was also satisfied that the accused would not jump bail or in any way interfere with Crown witnesses. In this case, the only evidence in support of the bail application is an affidavit filed by the accused in open Court at the hearing of this application. The reasons given by the accused as stated in his affidavit were that he had a family being his wife and four young children one of whom was only 5 weeks old and that he was the only bread winner in the family. The accused also promised that he would not abscond and would not interfere with Crown witnesses. I have taken into account what the accused said in his affidavit. As against that, the crime for which the accused is being detained is murder, the penalty for which is life imprisonment. The evidence against him is fairly strong in that there are eyewitnesses who saw what happened. There is no independent surety to guarantee the attendance of the accused at his trial. Mr. Gegeu is the accused’s father–in–law. He is not a person who can he said to be an independent surety. No independent evidence has been given as to the character of the accused in support of this application. Is he a truthful person in terms of being honest in what he said in his affidavit? I do not know. Simply taking the words of the accused on their face value is not good enough to convince me that he would stand by his words. Mr. Gegeu’s willingness to stand as a surety appeared to be a spur of the moment reaction to my suggestion to Counsel for the accused, Mrs. Samuel, to find out from Mr. Gegeu his consent to stand as the surety for the accused. Mr. Gegeu gave no evidence in Court that he would take responsibility as a surety for the accused. The accused has failed to tip the balance in my discretion in his favour. In other words, this application has no exceptional features so as to satisfy me that bail should he granted. The application for bail by the accused is therefore refused.

F. O. Kabui

Judge.