Tonowane v Regina [2005] SBHC 191; HCSI-CRC 055 of 2005 (30 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 055 of 2005

ANDREW TONOWANE

-V-

REGINA

Honiara: Brown CJ

Date of Hearing: 30^th March 2005
Date of Judgment: 30^th March 2005

Criminal Law -- bail application - murder and abduction charges - need to show exceptional circumstances - matters for a court's discretion.

This applicant has been charged with murder, abduction and two counts of assault occasioning grievous harm arising from a killing of a man of another tribe (following a land dispute) at the Malu'u Police Station on or about the 31^st January 2001. He is, he says, a leader of his community. There is evidence that he accompanied a group of his tribe when they took others of another tribe in a boat where these others were assaulted. His group was armed and a weapon was discharged in the boat. The others were then landed and taken to the Malu'u Police Station where one was apparently killed. This applicant was present at the Police Station.

Held:

1. The Crown case has not been shown to be weak.

2. No exceptional circumstances have been shown, for that assertion of difficult circumstances faced by the applicant's wife and children does not amount to such a circumstance taking account of the family community and tribal obligation afforded the family.

3. No sufficient matters have been advanced to justify the exercise of the courts discretion to grant bail.

4. On the issue of delay, the circumstances of the country, reliant as it is on the Regional Assistance Mission to the Solomon Islands reflect the obvious result and delay which follows such a sharp rise in prosecutions for such serious offences, some going back to the time before the coup, and ethnic tension. Delay then must take cognizance of the circumstances of the judicial organization in context of the increased work load and there has been shown, no undue delay beyond that reasonably to be expected. A trial date has already been tentatively set for February 2006.

S. Balea for the Crown
M. Anders for the applicant

Reasons for decision

Brown J: These are very serious charges. Whether the Crown is able to prove them when the matter comes to trial is problematical for as Anders says, the community about Malu'u has sufficiently settled so as to enable this man to campaign for a position in the Provincial Assembly. So whether the witnesses, whose evidence Mr. Anders as touched on today come up to proof at the trial will be of considerable interest to the defence. But I am faced with what appears to be a very strong Crown case.

This applicant, a leader in his community, was on the boat when men from another community were taken ostensibly to attempt settlement of a land dispute. Land disputes in that area are of great significance throughout the community and give rise to violence.

In this case others on the boat had weapons, it's conceded and one was discharged. Drink was involved. Persons were assaulted.

Later this applicant, with others, went to the Police station when a person from the other group was killed.

As I say this man, in his affidavit, claims to be a leader of his community. Mr. Anders has been at pains to distance this applicant's particular involvement in the assaults on the boat and the actions at the Police station.

I do not need to spend too much time on the strengths of individual witness statements from which Mr. Anders has been quoting, for from a wider perspective the Crown case may well rely on s.22, 23 of the Penal Code, and where this applicant, a chief as he says is involved clearly this position of influence in the community will be of importance.

There does not appear to be any dispute about the fact of the death or the fact that it was occasioned by acts carried out in the Police station by the particular group of this chieftans.

I am not minded then to accept Mr. Ander's suggestion that the Crown case suffer from serious weaknesses, although with the passage of time to the trial this may happen.

I pass to the principle factor for my consideration.

That is the exceptional circumstances or circumstances which need be shown on such a charge as murder or abduction. Mr. Anders pointed to the very serious difficulties in which this man's family now finds itself in the absence of the head of the family.

On such a serious charge as murder, taking account of the customary relationship and obligations in the clan, family and wider tribal community, I am not minded to find that argument amounts to an exceptional circumstance. Clearly where the wife is able to come to Honiara for this application, the fact of her travel by plane or boat reflects the community's support to which I refer, if she has no resources of her own.

Mr. Anders quite rightly tendered the accused's offender history, which dates back to 1969 and includes some offences, including assaults, the last such offence having occurred in 1998. In the circumstances here, where murder and abduction are charged, these various previous convictions including many for dishonesty and being drunk and disorderly do not weight heavily on my mind when I need consider this application for bail.

Mr. Anders quite rightly points to the risk of absconding or interfering with witnesses as material matters in his view, which should be considered by the court.

Since this applicant comes from the northern province of Malaita there is probably no great risk of absconding although, having regard to the circumstances surrounding the apparent refusal by the particular Malaitan community to assist the authorities with the capture of Edmund Sae, there is a chance, albeit a slim, one that the community may close ranks about this chieftan were he to be granted bail.

I disregard that, just as I disregard the risk to witnesses for the Crown. Witnesses are likely to be sourced from the other group and the witnesses whose statements have already been taken may well be witnesses on trial in due course.

Nevertheless I am satisfied as Mr. Anders says, that the investigation is well and truly complete and that supports his argument about the lessened risk to witnesses to some extent.

He also says the question of continued delay is a live issue. That is true, but the circumstances of the country, reliant as it is on the Regional Assistance Mission to the Solomon Islands reflect the obvious result and delay which follows such a sharp rise in prosecutions for such serious offences, some going back to the time before the coup, and ethnic tension.

Delay then must take cognizance of the circumstances of the judicial organization in context of the increased work load and there has been shown, no undue delay beyond that reasonably to be expected. A trial date has already been tentatively set for February 2006.

The Crown case has not been shown to be weak. The charges are most serious; no exceptional circumstances have been shown.

I did not call on the Crown to respond for on the material put before me, the applicant has not satisfied me that, in my discretion I should grant him bail.

Bail is refused.

BY THE COURT