Bulolo v Regina [2003] SBHC 93; HC-CRC 047 of 2003 (17 April 2003)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 47 of 2003

JOSHUA BULOLO

V.

REGINA

High Court of Solomon Islands
(Palmer J.)

Date of Hearing: 17^th April 2003
Date of Ruling: 17^th April 2003

R. Ziza for the Applicant
F. Mwanesalua for the Respondent (Crown)

PALMER J.: The Applicant with another co-accused was arraigned and committed for trial before this court on a charge of murder on 4^th March 2003. He now applies for bail. Applicant relies on a number of grounds which he says bring this case within an exceptional case for bail, recognizing that bail in murder cases is not normally granted save for exceptional reasons.

Applicant relies on his previous good standing in the community, his medical condition, his family obligations, that there are no threats from the deceased’s relatives, that his wife is prepared to act as surety, that he won’t interfere with Crown witnesses, that he won’t abscond and that the nature of the evidence is highly circumstantial.

I have listened carefully to Mr. Mwanesalua’s submissions in reply and take cognizance of them.

Bail in murder cases may be granted for exceptional reasons (section 106 of the Criminal Procedure Code Act). Each case has to be considered on its own facts.

Has the Applicant demonstrated that there are exceptional reasons for granting bail in the circumstances of this case?

First his previous good standing in the community. Normally such good standing operates in favour of an applicant. However, that must be weighed and balanced against the circumstances in which the offence is alleged to have been committed. I take into account the submissions of Mr. Ziza and the affidavit of the Applicant, that he holds quite a senior position as Head of Department in the Disease Control Department in the Ministry of Health and Medical Services, that he is the President of the Solomon Islands Nurses Association, that he is the National Coordinator of the TB and Leprosy Control Programme and that he is the Deputy Secretary of Solomon Islands Council of Trade Unions. Unfortunately, when that standing and status and responsibility is weighed against the circumstances in which the offence he is alleged to have committed is taken into account, he failed to manifest this sense of responsibility and maturity when dealing with the deceased that evening, taking into account the facts which are not disputed that the deceased is a brother in law to the Applicant. According to the facts, there was an argument, then a scuffle or a fight, which resulted in the deceased being assaulted and from which the deceased later died from his wounds.

There are other ways of dealing with customary and domestic related offences (the reason or motive apparently given it seems for the killing) other than by fighting and killing an offender in today’s enlightened and civilized society. In seeking to rely on his previous good standing, he must also be prepared to measure himself against a high standard of responsibility and restraint in his dealings. This is the price or expectation in society that members of the public expect of leaders and people with good standing in the community.

In Amos Teikagei v. Regina^[1] the Applicant in that case also sought to rely on his standing as a Church Pastor in the community, as bringing his case within exceptional reasons for bail in a charge for murder. He was a Pastor of a denomination and had sought to argue that he was a mere bystander caught up in the middle of a land dispute between the deceased and another co-accused. The court however rejected that argument when balanced against the state of the evidence, which also directly implicated him as a principal in the commission of the offence.

A fortiori, the evidence as against this Applicant directly implicates him as the instigator, aggressor and even to the extent of identifying him as the one holding an item (a fibro sheet) which may have been used to inflict the fatal injuries on the deceased. The evidence appears to be undisputed that there were only three persons involved in the argument, scuffle or fight, and that there were only two other persons who could have inflicted the fatal blows on the deceased, apart from any possible suggestions which may be raised in their defence, that the deceased may have injured himself from a fall or whilst escaping from the two attackers, being this Applicant and the co-Accused. The evidence if anything points more against this Applicant as the prime suspect.

As to his medical condition, whilst that is taken into account, there has been no recommendation made from any medical practitioner that to continue remanding him at Central Prison poses a serious threat to his health and that he should urgently be considered for release on bail while waiting for his trial. The fact that he has a medical condition, which requires attention and is being remanded in custody, does not prevent him from receiving frequent medical attention depending on the reports from his physician. I am aware that the Prison should have a nurse or a doctor who should be able to have access to remandees where that is deemed necessary. Also access to medical treatment at the Central Hospital should be made available by Prison authorities when requested. Normally remandees or prisoners are taken on escort to receive medical treatment. There has been no suggestion that this Applicant has been denied medical attention. As to the submission that conditions in the prison are not conducive to his medical condition, that it is cold, I think this can be addressed with the Prison authorities to provide or make available clothes or blankets to keep him warm.

One of the things, which usually is affected as a result of a crime being committed and the due process of law is being applied, is the family obligations and responsibilities of an accused. It is unfortunate that his family is affected, but that is a matter, which he and his spouse and family members will have to address. If convicted he will be deprived permanently by law from attending to his family obligations. This with respect cannot in the circumstances of this case amount to a special circumstance. The time to think about those things are before one commits a crime.

I accept that there may be no threats from the deceased’s relatives in this instance, but that is only one of the factors for this court to balance.

His wife offering to act as surety with respect is not satisfactory. His wife was not only directly connected to the events which occurred that night but because of her relationship to him, she would have an interest in ensuring that he be released from custody and that he is not convicted. Mr. Mwanesalua did raise a pertinent issue concerning interference with witnesses, in this case where the wife has been included as one of the prosecution witnesses. I agree with learned Counsel that if the Applicant had been allowed to be released on bail I would have required surety from another person in addition to the wife.

I accept submissions of learned counsel, Mr. Ziza that the likelihood of this accused absconding is quite remote. However that must be weighed against the state of the evidence before this court. I have already alluded to this which in my respectful view quite contrary to the submissions of Mr. Ziza that there is evidence even if it might be circumstantial evidence, in the sense that there is no direct eye witness account of the fatal blows being delivered but there is evidence which is consistent with the conclusion that blows appear to have been applied to the body of the deceased and the strong inference which can be deduced from the evidence if accepted is that most likely it was delivered by this Applicant, as the more aggressor of the two accused. Further there is direct evidence that immediately when the deceased appeared again in the sight of the witness James Gauebola, he apparently had blood on his body and following in hot pursuit behind him was this Applicant holding a sheet of fibro, which most likely could have been used to inflict the fatal blows to the body of the deceased and from which he later died at the Central Hospital. This witness also heard this Applicant uttering words to the effect, which would directly link him to the possibility that he had applied blows to the body of the deceased. I am not satisfied that the state of the evidence is flimsy or can even be described as weak. There is direct evidence, which could link this Applicant directly with any assault on the body of the deceased.

Bearing in mind that murder is one of the most serious offences in our statute book and that only in exceptional cases should bail be granted, taking everything into account, as well as the fact that the case is more or less ready for trial before this court, I am not satisfied that it has been sufficiently made out before me that bail should be granted in this case. Application denied.

The Court.

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^[1] unreported, HCSI CRC 14 of 1995, 29^th January 1996