Fioga v Regina [2005] SBHC 128; HCSI-CRC 325 of 2005 (6 October 2005)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 325 of 2005

ANDREW FIOGA

v

REGINA

(Naqiolevu, J)

Hearing: 29th September 2005
Ruling: 6th of October 2005

Mr. Baker for Applicant
Mr. Little for Respondent

RULING

The applicant seeks bail to await his trial which has been fixed for hearing sometime in September 2006.

He was committed to stand trial in the High Court in July 2005.

The applicant is charged with several accused with the offence of Demanding Money with Menace contrary to section 294(1) of the Penal Code.

Counsel for the applicant raise the delay in the accused case being heard as of serious concern, given he will remain in custody for a period of 12 months or more.

Mr. Baker further raised the important point that the applicant has been bailed previously in the lower court and has not breached any bail conditions. In the circumstances there is no likelihood he will not appear at his next mention date.

The Crown object to bail on the ground of the seriousness of the offence. The applicant during the course of the commission of the offence had threatened the victim with a gun. This makes the offence serious and therefore he should not be granted bail. Counsel further submits given the nature of the offence there is a likelihood of the applicant absconding.

On the issue of the long period of detention before the case is fixed for hearing, the Crown submit there is no right to a speedy trial. If this is raised as a breach of the Constitutional right, then the applicant must file an application directly to the High Court which will have to include the Attorney General.

RIGHT TO BAIL

Bail is a fundamental right provided under the Supreme Law of the land the Constitution and the Criminal Procedure Code. The power to grant bail is clear.

In John Mae Jino & John Gwali Ta'ari v. R¹, Palmer J, as he then was, said:

"Bail is a right protected by law (section 106 of the Criminal Procedure Code). The granting of bail by the court however is discretionary. That means it is not to be unreasonably withheld."

CONSTITUTIONAL RIGHT

The Constitution furthermore provide this protection under section 5(3), which in part,

"Any person arrested or detained,

Upon reasonable suspicion of his having committed an offence and who is not released"

"shall be brought without undue delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time then, without prejudice to any further proceedings that may be brought against him."

"He shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial."

Muria ACJ, as he then was in R -v- Perfill² said,

"The common law presumption of innocence is embedded under the Constitution of Solomon Islands and is done without qualification. Thus prime facie, an accused is entitled to bail"

The provision of the Constitution is available to any person who feel aggrieved by its breach and there are several ways in which he may seek relief from the courts. He may file an application in the High Court seeking redress, which will require the Attorney General to be included as a party to the proceedings. Or he may at any stage of a bail application before the trial Judge raise the issue of unreasonable delay as one of the grounds, which the court must consider and make appropriate order in the circumstances.
Clearly the discretion to grant bail therefore is the duty of the court, unless there are substantial grounds before the court to refuse bail.

In Wells Street Magistrate's Court; Ex Parte Albanese Ralph³ Gibson J, delivering the judgment of the court commented.

"The public duty of the court is to grant bail unless, inter alia it considers that there is substantial grounds for believing that the defendant would fail to surrender to custody."

"The onus is therefore on the prosecution to satisfy the court on the "balance of probabilities" that a defendant should not be granted bail."

LIKELIHOOD OF ABSCONDING

The applicant has shown in a previous case in which he was granted bail to have complied with his bail conditions and he surrendered to the court for his trial, wherein he was sentenced to a term of imprisonment. The applicant I am certain understands the process of bail and know the consequence if he breach the bail conditions by absconding. I am not satisfied that the fear of absconding can be a justifiable ground for objecting to bail.

INTERFERENCE WITH WITNESS

On the issue of interference with witnesses, it is clearly unlikely that the applicant will interfere with witness. The prosecution has completed its investigation and the witnesses Statement obtained and the case fixed for trial. I am not satisfied there is any likelihood of interference with witness in the case.

SERIOUSNESS OF THE OFFENCE

The seriousness of the offence relates to the threat to shoot the victim, and the punishment the offence attracts which is a maximum life imprisonment. In considering the level of seriousness, the court has taken into consideration the circumstances of the case and is of the view that the threat has been denied and it will be a matter to be determined by the trial judge. Furthermore the average term of imprisonment imposed by the courts in this jurisdiction for this type of offence range from 18 months to 3 years.

I am therefore not satisfied that it has been established on the balance of probabilities that bail should not be granted in this case. I therefore grant bail on the following conditions:

ORDER

1. Deposit in the sum of $1,000.

2. He is to reside with his family at Burns Creek.

3. Provide a surety of $500.

4. Not to leave Honiara City without the consent of the court.

5. Not to approach any prosecution witness.

6. To report to the Central Police Station Mondays to Fridays between the hours of 9am. - 4pm.

7. To appear at his trial when required.

THE COURT

1 Crim Appeal Case No. 172 of 1999
2 Crim Appeal Case No. 30 of 1992
3 (1982) 74 Criminal Appeal R 180 [1981] 3 All ER 769