Regina v Idu [2004] SBHC 19; HC-CRC 046 of 2004 (27 February 2004)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 046 of 2004

REGINA

-v-

BENEDICT IDU

HIGH COURT OF SOLOMON ISLANDS
(KABUI, ACJ).

Date of Hearing: 26^th February 2004
Date of Ruling: 27^th February 2004

K. Averre for the Applicant
R. Barry for the Crown

RULING

Kabui, ACJ. This is a bail application brought by Benedict Idu who is being kept in the Rove Prison since September 2003 following his arrest in relation to alleged robbery at SOL-LAW office, abduction and murder of Selwyn Saki.

The Law.

The law on application for bail and the granting or refusal of it is well established in this jurisdiction. I need not revisit all the decided cases which have stated the principles upon which any bail application can be decided by the High Court. The principles which apply are important in that they will determine the way in which the Court exercises its discretion after hearing the bail application and any opposition to it. The principles were revisited by the Supreme Court of South Australia in The Queen v. Martin, (1980) 23 SASR 233. In its judgment, the Supreme Court highlighted the long standing factors to be taken into account when the court exercises its discretion, namely, the nature of the crime, the gravity of the crime, the penalty for the crime, the probability of conviction, the nature of the evidence given by the prosecution and the severity of the penalty for the crime. In that judgment, the Supreme Court did acknowledge what it called “see-saw” between interest of the community preventing the accused person from escaping or committing further offence and the liberty of the accused person who remains innocent until proven guilty by a court of law. The Supreme Court did state that there was a departure in Australia as shown by a number of decided cases in the State Courts. It said that in Reg. v. Alexander [1955] VicLawRp 55; (1956) VLR 45, Sholl, J. put the issue as a question of risk of harm to the public if bail is abused. It said that another judge in NSW put the issue as the public interest being the important consideration whilst accepting that the accused person is entitled to a fair trial. It cited Re Anderson [1978] VicRp 34; (1978) V R 322, where O’ Brien, J. restated that in murder cases, the accused person needed to show special or unusual circumstances, the burden of doing so is upon the applicant, before bail can be granted. O’Brien, J. was quoted as saying that-

“...The relevant considerations in murder and other serious crimes, do not seem to differ when one views the public interest and public standards at this point of time emerging into the 1980s. In all cases the understanding is that justice will be served if the discretion is exercised by keeping a proper balance in the individual circumstances of each case without emphasizing the fact that the charge is murder. It is the seriousness of the act which is the relevant and important criteria for determination of the exercise of the discretion...”

So, this is the position in Australia at least for New South Wales, Victoria and South Australia. The seriousness of the crime is the important factor which determines in whose favour the discretion of the court is to be exercised. In Papua New Guinea, the position is governed by the Constitution and the Bail Act, 1977. In this country the common law position prevails subject to refinements brought about by the High Court. The English oak transplanted in Solomon Islands ought to be pruned to suit the local prevailing circumstances.

In Perfili v. R, Criminal Case No. 30 of 1992 (unreported), Palmer, J. regarded the possibility of the accused person interfering with witnesses as being a relevant factor to be borne in mind by the judge. The delay in bringing the accused person to trial is also a relevant factor (per Palmer, J. in Perfili’s case cited above and per Muria, CJ. in R. v. Philip Tagea, Amos Teikagei & Damaris Teigakei, and Criminal Case No.14 of 1995). The family needs of the accused person are other factors to be considered (per Palmer, J. in Tagea’s case cited above). As recently as in December, 2003, Brown, J. in Ronly Oeta and Maelalia v. Reginam, Criminal Case No. 294 of 2003, regarded “ethnicity” and “police culture” as being relevant factors affecting his decision in rejecting bail. However, in Hou v. The Attorney-General [1990] SILR 88 Ward, CJ. did point out that an accused person should not be held in custody if the only reason to do so is the need to finalize the investigation. So, the scope of the court’s discretion is fairly wide at common law in terms of the factors influencing the direction in which the discretion is to be exercised by the court.

The application of the principles.

The application of the principles in any bail application are not to be based on bare arguments of each counsel from the bar table but rather they are applied on the basis of the evidence presented in court by the applicant and the prosecution and the respective arguments for each side.

The Robbery Charge.

The charge of robbery against the applicant is a serious one. The maximum penalty for the offence of robbery, contrary to section 293 of the Penal Code Act (Cap. 26) can be imprisonment for life, imprisonment for 14 years or imprisonment for 5 years, depending on the kind of robbery committed. Whilst there is no evidence that the applicant possessed a gun in the morning, he was one of those persons who entered Sol-Law Office and seen there by the Secretary, Janet Tolosi. In the afternoon, he was seen outside the Anthony Saru Building with others having arrived in a red Land-Cruzer. This is confirmed by Messrs Ilitaloa and Steven Oti. Mr. Ilitaloa saw the applicant was in possession of a gun, SLR. Janet Tolosi and Messrs Ilitaloa and Oti were eye witnesses. They saw and identified the applicant. This fact is further confirmed by the applicant himself in the record of interview conducted by the Police on 17^th October 2003. This is the strength of the prosecution case on the charge of robbery against the applicant. There is a prima facie case against the applicant and if maintained at the trial could well secure a conviction and any sentence is bound to be custodial.

The Abduction and Murder Charges.

Again, the offence of abduction, contrary to the sections in Part XXIV of the Penal Code Act cited above is a serious one, and carries a maximum penalty that varies from 7 years to 10 years depending under which section the applicant is being charged. The penalty for murder is of course life imprisonment. The prosecution evidence in this regard is contained in Station Sergeant Fox’s affidavit and the exhibits attached thereto. Exhibit “2a” is a statement by Tony Baura recorded by the Police. Exhibits “2b” and “2c” are statements by John Tua and Robert Maelaua. Tony Baura says that on 19^th September 2001, he saw a bullet hole in the front windscreen and on the body of a truck that was being driven into Bobo Dettkke’s compound near King George VI School. One of the outer rear tyres had also been removed, leaving only one tyre. The driver and his passenger then reported to Moses Su’u, and some named persons that Selwyn Saki’s boys had fired shots at the truck and removed some quantity of timber from it. After talking some more, Mr. Marshall got very angry and demanded that Selwyn Saki must pay for the damage caused. On Friday 21^st September 2001, at about 4pm, he saw Moses Su’u and Niigel Marshall talking in the workshop. He later joined them and asked what they were talking about and then told that the matter being talked about was the damage done by Selwyn Saki’s boys to the truck. He then went home. Later at night, Moses Su’u turned up at his house and asked him to join them the next day to visit Selwyn Saki. Having woken up late, he missed the trip arranged for Saturday 22^nd September 2001. On his way back from Bobo Dettkke’s workshop, having got there only to find no one on the premises, he saw a white Forerunner vehicle being driven by a named person and a coloured Land-Cruzer belonging to Selwyn Saki, driven by the applicant. The other two vehicles were driven by two named persons. He turned around and followed them to Bobo Dettkke’s workshop. Having reached there, he spoke to Moses Su’u who told him that Selwyn Saki was in the truck with his hands tied up. He went to the truck and saw Selwyn Saki lying on his stomach blindfolded. He had blood on his face. The applicant was there with Moses Su’u, and some named persons. Selwyn Saki was then driven up the Mount Austen road. At the Japanese War Memorial, the vehicle carrying Selwyn Saki stopped and the applicant with the others dragged Selwyn Saki out of the vehicle and he was beaten up. The applicant was one of them who hit Selwyn Saki as a result of which he sustained injuries to his nose, mouth and right eye-brow. After that he drove Moses Su’u back to his house at Mbua valley. He never saw Selwyn Saki again until Moses Su’u told him on 23^rd September 2001 that the boys had killed Selwyn Saki. John Tua says that the applicant went with them to Selwyn Saki’s home. When they got there, the applicant and a named person fired their guns in the air and then the applicant forced Selwyn Saki into the white Land-Cruzer and they left. Whilst on the way, the applicant hit Selwyn Saki and they had to stop. Selwyn Saki was placed in the back of a Forerunner with his hands tied up. They then proceeded to Bobo Dettkke’s workshop. From there, Selwyn Saki was driven up the road to Mount Austen. There, Selwyn Saki was beaten up, after which he was taken further up the road in his white Land-Cruzer driven by the applicant. Robert Maelaua supports what Tony Baura and John Tua have said. The applicant was the driver of Selwyn Saki all along and he had a gun with him at that time. Who fired the shots where the applicant and others stopped at the end of Selwyn Saki’ journey is not known as yet. The applicant is clearly connected with the abduction and the death of Selwyn Saki. The evidence is fairly strong being that of eye witnesses.

The Applicant’s case.

The applicant’s case is set out in his affidavit filed on 26^th February 2004. Basically, he was saying that he had no case to answer at this stage. This is no longer the case in view of the damning evidence produced by the Prosecution in Sergeant Fox’s affidavit evidence filed on 25^th February 2004 and the exhibits attached thereto. Counsel for the applicant, Mr. Averre, argued that there were materials in the affidavits filed by the prosecution which could amount to exceptional circumstance as regards the charge of murder against the applicant. He argued that though the actions of the applicant did take place subsequent to the TPA, the situation was still a conflict between the militants of both sides of the conflict. He argued that the situation was now peaceful and urged me to take that into account when exercising my discretion. Quite honestly, I can see no case of special circumstance being made out of the prosecution evidence. In fact, the opposite is the case. The applicant bears the burden of having to prove special circumstances which in this case, he has not done so. The applicant’s affidavit speaks for itself in that regard. It is scanty and lacking in content and persuasion.

The Prosecution case.

I will exercise my discretion in favour of the prosecution. The charges are very serious indeed and the consequence of conviction is obvious. The evidence produced by the prosecution is only a brief. The evidence being put together by the Police will comprise 4 to 5 volumes and will contain 40 witnesses’ statements plus record interviews. So, there is a lot more to come. The applicant has now a glimpse of the evidence that will be served on him on 20^th March 2004. According to Sergeant Fox, there has been delay but such a delay is due to the case being an old one and witnesses have moved to different places, people have used nick names and the logistics involved not being easy. Clearly, the prosecution opposed the application on two grounds, namely, the risk of the applicant absconding and the risk of interference with witnesses. I agree entirely. The risk of absconding is not to be under-estimated. The same is to be said on the risk of interference with witnesses. From the prosecution evidence, a lot of persons seemed to have been involved in the robbery charge and quite a number in the abduction and murder charges. There is the obvious tendency of each person denying involvement, blaming the other or telling others to shut up. The question of ethnicity bias cannot be underestimated. The release of the applicant on bail only increase the risks stated by the prosecution. The fact that others may have been bailed is no reason for bail to be granted in this case. The applicant did not produce any further details on that allegation. The applicant may have had a change of heart not to abscond or interfere with witnesses but I cannot believe him and take the risk of letting him out and in the end not turning up in court for his trial. That would be a set back for justice to take its course. In this case the interest of the community or the public interest for that matter prevails over the liberty of the applicant. Bail is denied and accordingly the application is refused.

F.O. Kabui, ACJ.