Havimei v Regina [2005] SBHC 26; HCSI-CRC 464 of 2005 (9 December 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 464 of 2005

GABRIEL HAVIMEI, JAMES KILI, WAWARI MALOLO,
NICHOLAS NA’AGI AND JOHN TALOI

V.

REGINA

High Court of Solomon Islands
(Palmer CJ.)

Hearing: 23 November 2005
Judgement: 9 December 2005

C. Ashley for the Applicants/Defendants
P. Bannister for the Respondent/Prosecution

Palmer CJ.:

Gabriel Havimei, James Kili, Wawari Malolo, Nicholas Na’agi and John Taloi (“the Accuseds”) have been jointly charged with the following offences to date:

1. 1 x count of murder contrary to section 200 of the Penal Code,
2. 1 x count of robbery contrary to section 293(1)(a) of the Penal Code,
3. 22 x counts of attempt to cause grievous bodily harm contrary to section 226 as read with section 378 of the Penal Code.
   

It appears there are also other charges of possibly common assault, assault causing actual bodily harm and attempted murder which may also have been laid but that is not clear on the facts before me. The reason being that this case is yet to be committed to the High Court despite some 8-9 months have lapsed after arrest and remand of the Accuseds in custody.

Whilst it is not in issue that the charges for which the Accuseds have been charged with are very serious, I take cognisance of the background circumstances under which the allegations occur.

The offences were alleged to have occurred in September 1999, some six years ago, at the beginnings of the ethnic / rebellious activities by militant groups on Guadalcanal, at a time when the Solomon Islands Police Force was struggling to maintain law and order on the Island. The Accuseds were all Police Officers at that time and had been sent on a mission to try and capture the two warlords, Joseph Sangu and Harold Keke, a daunting task it would seem. It was also at a time when one of their colleagues, a prison officer had also been captured by militant groups and part of the operations it seems was to try and locate him or get some information as to his whereabouts. Gabriel comes from Isabel Province, James and Wawari come from Malaita, Nicholas from Reefs and John part Malaita and Guadalcanal. The Police at that time it seemed had received reports about the activities of Harold Keke (“Keke”), Joseph Sangu and Andrew Te’e (“Te’e”) and the Accuseds were tasked with the responsibility of capturing those men with the help it seems of some informants. They left on a powered boat and travelled to Marau under cover of darkness. They had encounters with Te’e and managed to capture his driver and a boat and an array of arms, home made weapons and ammunition. They also encountered Keke but despite giving chase, he escaped. The alleged incidents occurred as they were returning back from Marau to Honiara. The alleged murder occurred at Talaura point when the Accuseds shot a man whom they say was wearing a “kabilato” (a traditional clothe worn by the militants on Guadalcanal Island to identify it seems their struggle for recognition etc.). They say they saw a beach bunker used by militants at that point. Prosecution’s case is that the man was fishing when he was shot and unarmed and that there was no encounter. There were other men at the beach with him who managed to escape but not the deceased Robert Roso.

It is trite to point out that in a bail application where murder forms one of the charges, exceptional circumstances need to be shown.

It is not in issue that the offences for which they have been charged with are very serious. That however has to be weighed with the risk of absconding; that the Accuseds will not appear at their trial. This requires a consideration of the circumstances and strength of Prosecution’s case. Taken at its highest, prosecution’s case cannot be described as weak, though it would seem that there is suggestion by the Accuseds of having been shot at first. Prosecution’s case stands on the statements of another police officer, Jeffrey Pasio, who was the driver of their dinghy or boat and another civilian also in the canoe apart from those at the beach or shore who witnessed the shootings. In terms of the probable outcomes, if convicted they will face life imprisonments apart from terms of imprisonments for the other offences.

Apart from recent convictions against James Kili who is still a serving prisoner, Wawari Malolo who has served his prison sentence and is being remanded under these current charges and Nicholas Na’agi, the other two accuseds do not have any criminal history, there has been no suggestion that these Accuseds will abscond if released on bail. Their bail history too does not contain any adverse records of not having complied with any previous bail requirements. I note these Accuseds were residents of Honiara City and had fixed addresses at the time of their arrest. As former Police Officers they would have good appreciation of the requirements of bail and the penalties for not complying with its requirements. There is no suggestion that they do not have a fixed address where they can be easily located if released on bail. There is also no suggestion that they do not have strong community ties especially as former police officers residing within Honiara City.

In regards to risk of commission of further offences, again there is no suggestion that further offences will be committed if released on bail. Two of the accuseds do not have previous convictions, whilst Wawari Malolo has already served his term of imprisonment.

The possibility of interference with witnesses in this case in my respectful view is remote on the grounds that there is little prospect of contact or communication with the victims especially where they live in the outskirts of the Honiara City. Further possibility of such contact can be reduced by imposition of conditions.

The issue of delay is relevant in this particular case in so far as it relates to the length of time it has taken since arrest of the Accuseds and their remand to date, amounting to some 8-9 months and yet no committals to date has been done. This in my respectful view must weigh in favour of bail for the Accuseds. Until a committal is done and information filed by the Director of Public Prosecutions, the High Court does not take cognisance of this case for purposes of listing.

I allow bail for all accuseds save James Kili who is still serving his prison sentence with conditions as follows:

1. Each accused to provide two sureties each of $500.00.
   
2. To provide addresses of fixed abode in Honiara and not to leave the vicinity of the City without leave of the Court.
   
3. Report weekly to Central Police Station no later than 4.00 pm on Fridays.
   
4. Not to communicate with any of the Prosecution witnesses.
   

The Court.