Sisifiu v Reginam [2003] SBHC 119; HC-CRC 128 of 2003 (12 August 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 128 of 2003

REDLEY CLEMENT SISIFIU

V.

REGINAM

High Court of Solomon Islands
(Palmer J.)

Date of Hearing: 11^th August 2003
Date of Judgement: 12^th August 2003

D. Hou for the Applicant
Director of Public Prosecutions (F. Mwanesalua) for the Respondent

PALMER J.: The Applicant was apprehended on or about 3^rd April 2003 and charged together with three others for the murder of Richard Ramo (“the Deceased”). The offence was alleged to have been committed on 1^st January 2003 in Honiara. It was alleged that the accuseds had gone armed with knives to the house of the Deceased at around 9.00 – 9.30 a.m. on New Year’s Day and attacked him resulting in a fatal stab wound being inflicted. The Deceased was rushed to hospital but died from his injuries. There were eye witnesses to the scene of the crime who have given written statements to the Police directly implicating the Applicant as one of the attackers.

The Applicant has been in custody since. He now comes to court and asks for bail to be granted based on the matters deposed to in his affidavit filed 19^th June 2003. Of particular emphasis were the adverse factual circumstances now confronting his family at his home village at Malaita including the fact that his wife is pregnant and expecting the birth of their baby soon. A Doctor’s report (see letter of Dr. Wade U. Pana dated 5^th August 2003) has also been produced as evidence in court in support of his wife’s pregnancy and that she is expecting the birth of their baby soon within the next nine weeks or so.

He also refers to the delay in the hearing of this case, the fact that he has no reason to abscond, that he is prepared to offer cash bail of $1,000-00 or more as is required and assurances that there is no possibility of interference with crown witnesses. He also says that the evidence may not be as strong as it appears on first impressions as the crown witnesses may have ulterior motives in naming him as one of the attackers; he has given notice of alibi witnesses that he proposes to call who will give evidence to the effect that he was not present at the scene of the crime.

The Prosecution naturally opposes bail, on the grounds that the matters relied on do not amount to exceptional circumstances which would warrant the exercise of the discretion of this court to grant bail.

The Law

Section 106(3) of the Criminal Procedure Code (“the CPC”) gives the High Court power to grant bail in murder cases.

“(1) Subject to the provisions of section 23 where any person, other than a person accused of murder or treason, is arrested or detained without warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person may in the discretion of the officer or court be admitted to bail with or without a surety or sureties.

...

(3) Notwithstanding anything contained in subsection (1), the 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 requirements for bail are primarily to secure the attendance of the defendant at the trial – R.v. Rose^[1]; the test to be applied is whether or not it is probable that the accused will appear in Court at the trial date – Karawasi Taisia v. Director of Public Prosecutions^[2]; “The principal consideration in all bail applications is whether the accused will attend his trial.” - R. v. Kong Ming Khoo^[3]. 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 be imposed upon conviction and the availability of sureties as the case may be – see page 71 of Archbold, Criminal Pleading, Evidence & Practice, 36^th Edition by Butler and Garsia, quoted in Karawasi Taisia v. Director of Public Prosecutions (ibid) by Kabui J. at page 3.

It has been held that whilst bail may be considered for murder charges it may be granted only in exceptional circumstances (R. v. Kong Ming Khoo^[4]; see also R. v. Dickson Maeni^[5] and Karawasi Taisia v. Director of Public Prosecutions^[6]). No attempt however has been made in this jurisdiction to define or identify what those possible exceptional scenarios may be when bail may be considered in murder charges. Rather each case had been dealt with on a case by case basis (see R. v. Alwin Paul^[7]; R. v. Joachim Wale^[8]; R. v. John Robu, Henry Faramasi, Lency Maenu’u and Peter Kabe^[9]; R. v. Dickson Maeni^[10]; note a very convenient summary of these cases regarding the granting of bail in each case had been provided by Kabui J. in Karawasi v. Director of Public Prosecutions (ibid) at page 4.

In his submissions, learned Counsel Mr. Hou attempts to define exceptional circumstances as relating to the crime alleged or the particular circumstances of the accused. He then went on to submit that the adverse circumstances currently being experienced by his client’s spouse and family as a result of his remand in custody amounts to an exceptional circumstance. Learned Counsel cites my comments in R. v. Philip Tahea, Amos Teikagei & Demaris Teikagei^[11] as supporting his submissions.

I would agree with learned Counsel’s submissions that the exceptional circumstances referred to in the case authorities pertain to the crime alleged and the circumstances of the accused. These must necessarily include the usual considerations the court is required to consider on whether bail should be granted or not. Regrettably it does not include the personal circumstances, including the hardships that his family may be facing as a result of his being on remand. Whilst I sympathise with the hardships this Applicant’s family may be going through as a result of his confinement on remand, they do not constitute exceptional reasons for bail to be granted. Obviously his family will be adversely affected by his confinement in custody. The court may take that into account, but that is subservient to the primary matters the court is required to have regard to. My comments in R. v. Philip Tahea, Amos Teikagei and Demaris Teikagei (ibid) must be viewed in that light.

Application

Has any exceptional circumstance been shown that would warrant the accused being released on bail in this case? Respectfully this must be answered in the negative. The nature of the accusation in this case is extremely serious. Murder is one of the most serious crimes under our criminal legislation. The life of a person has been taken away in a moment of time. That life cannot be replaced by those who took it away. The allegations not merely implicate the Applicant and others directly but they also reveal the presence of aggravating factors in the commission of the offence, notably the presence of weapons (bush knives), that the attack was done by a group of persons on an unarmed and virtually harmless person and that it was pre-planned.

The evidence against this Applicant is direct, despite his denials and a notice of an alibi being given. The conflicts of evidence are matters which will be determined at trial. The incident occurred in broad daylight at the residence of the Deceased himself and in the presence of a number of direct eye witnesses to the crime. The evidence therefore cannot be said at this point of time to be weak, ambiguous, vague or circumstantial.

If convicted the Applicant will face a mandatory sentence of life imprisonment, anything less, that is, if the murder charge should somehow be reduced to one of manslaughter, assault or even criminal trespass will still incur a sentence of imprisonment for a term.

The fact this Applicant has given a notice of alibi raises the possibility of interference with witnesses. He has asserted strongly in his affidavit that he was not present at the scene of the crime. This will be contrasted with the evidence of eye witnesses who saw this Applicant coming with the group of attackers that attacked the Deceased and resulted in his death. If for arguments sake the Applicant is not telling the truth, then it is only obvious he will be trying to influence those persons that he has included in his list of alibi witnesses to cook up a story regarding his whereabouts that morning.

The notice of an alibi merely gives the prosecution opportunity to investigate the alibi. Whether it does investigate or not or to what extent, again are matters for the learned Director of Public Prosecutions (“Director”) in his discretion to determine. It must be borne in mind also that the decision whether to call a witness present at the scene to give evidence is a matter within his discretion to determine. If he declines, nothing untoward should be inferred. Any decision to call a witness or not obviously will be dependent upon the question whether any of those persons will give material evidence or not. The only requirement imposed upon him is to make available to the Defence on request any statements of witnesses that he does not call and which the Defence on the other hand may wish to call.

When all these factors are put together, they raise a prima facie risk not only that the Applicant may try to avoid his trial but that there is a strong possibility of interference with police witnesses and other witnesses. In the circumstances of this case, any such possible interferences must be avoided.

I take note the Applicant has offered cash bail of not less than $1,000-00. Unfortunately that is not sufficient in this type of case, an independent surety must also be provided for a satisfactory sum that would be responsible for ensuring that he did turn up at his trial. I would have required a further surety if I was minded to grant bail.

The Preliminary Inquiry (“PI”) in this murder case was completed earlier this year, exact date is not known. The PI documents were not forwarded to the Registrar of High Court until sometime in late July 2003. Section 229 of the CPC requires “...the written charge, the statements of witnesses ..., the depositions, the statement (if any) of the accused person, the summonses or recognisances, as the case may be, of the complainant and of the witnesses, the recognisances of bail (if any), and any documents or things which have been tendered or produced as exhibits and marked as such, shall be transmitted without delay by the committing court to the Registrar of the High Court ....” (Emphasis added). The committing court must be wary of this provision and ensure that any unnecessary delays are avoided. Having said that, I am not satisfied any further delay is likely to occur. The case is now ready to be fixed for trial. A call up should be made and a hearing date fixed. This is further ground for refusing bail.

Orders of the Court: Refuse Bail Application.

The Court.

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^[1] 67 L.J.Q.B 289
^[2] Unreported Criminal Case No. 266 of 2001 per Kabui J. at pages 2-3
^[3] Unreported Criminal Case No. unknown of 1991 per Ward CJ at page 3
^[4] (ibid) at page 2
^[5] Unreported Criminal Case No. 117 of 1999 per Palmer J. at page 1
^[6] Unreported Criminal Case No. 266 of 2001 per Kabui J. at pages 2-3
^[7] Criminal Case No. 2 of 1997
^[8] Criminal Case No. 21 of 1998
^[9] Criminal Case No. 28 of 1978
^[10] Criminal Case No. 117 of 1999
^[11] Unreported Criminal Case No. 14 of 1995 at page 3