Hese v Reginam [2005] SBHC 37; HCSI-CRC 026 of 2005 (17 February 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 26 of 2005

ANDREW HESE

–V-

REGINAM

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 16^th February 2005
Date of Judgement: 17^th February 2005

M. Anders for the Applicant/Defendant
S. Cooper for the Respondent/Crown

Palmer CJ: The Applicant has been charged with one of the most serious offences in our Penal Code, the murder of Jack Taka (“the Deceased”) which is alleged to have occurred between 9^th and 14^th April 2003. He was arrested on or about 2^nd October 2003 and has been remanded in custody since (some 16 months). The Applicant has also been charged with the offence of being a member of the Guadalcanal Liberation Front (“GLF”).

Prosecution has provided for my assessment regarding strength of prosecution’s case, statements of at least four eye witnesses to the shooting incident, carried out basically in military execution style; a single shot to the back of the head with a high powered rifle.

The statements reveal a compelling case against the Applicant; the alleged circumstances of which are extremely serious and cold blooded. The alleged incident occurred in the afternoon in broad daylight on the beach near Pite Village. All four witnesses were present at the scene; two of them later buried the Deceased after the shooting. If convicted of the charge of murder the Applicant will be sent to prison for life, and as pointed out at this point of time the prosecution case is compelling.

The Applicant applies for bail and relies on the following grounds:

(i) Delay of listing in the case;

(ii) Provision of three sureties;

(iii) Address of residence if released on bail;

(iv) Family circumstances;

(v) Possibility of re-offending as remote;

(vi) Willingness to abide by any conditions to be imposed by the court;

(vii) A possible defence to the offence; and;

(viii) Strength of the prosecution case in the light of that defence.

Prosecution naturally opposes bail.

On the issue of delay, whilst that is conceded I do not think it can be described as unreasonable. There are other cases in which similar delays have occurred. Also in other jurisdictions it is not uncommon to have persons in remand up to 2 years. Having identified the file number of the case and issued instructions for the matter to be included in the list for call-overs for the 25^th February 2005 the issue of delay will now be taken care of. This case can be given priority for listing for sometime later this year. I accept though the issue of delay has to be considered in line with other matters.

On the issue of whether there is a possible defence and whether this tilts strength of prosecution case in favour of the defence, entails some preliminary assessment of the evidentiary material before this court. I note the defence which may be relied on is compulsion or duress. This is based on the submission that the Applicant in shooting the Deceased was merely carrying out orders; that he feared for his own safety and life, that he would be killed by Harold Keke if he did comply with those orders.

When the various statements are considered however, there is also evidence which could indicate that the actions of the Applicant were also done at his own free and voluntary volition; his involvement with the GLF was a matter of his own choice; that it appears there were others who made the choice to run away having seen how Harold Keke (“Keke”) behaved and refused to participate in his devices. While the orders may have been given by Keke, by remaining with him he gave support and thereby was in position not only to receive orders but to carry them out. I do not need to go into detail on this, they will obviously be addressed in detail at trial. Suffice to say there is material before the court which indicates at this point of time that this man was a willing participant or placed himself in a position of compromise voluntarily. The statements of the four witnesses relied on by Prosecution in this application indicate that whilst they may have been supporters initially of Keke, they decided at some point of time to exercise their own free and independent will to escape after realizing that something drastically wrong or wicked was going on.

The fact that the case against the Applicant is compelling, the alleged circumstances of the offence extremely serious, raises the stakes against the Applicant in that there is a greater risk to the public. The possibility of absconding and interference with witnesses and the course of justice cannot be discounted despite the very best of intentions, assurances and the provision of sureties and a suitable place of residence or address if released on bail. It is not unusual for accuseds charged with very serious offences to be sorry remorseful and to have a change of heart after the event. That should be borne in mind, but to be balanced with the interests of society and the risks associated if bail is granted.

Where the charge is murder or treason section 106 of the Criminal Procedure Code makes clear that it is only exceptionally that bail is granted ^[1]. The risks can simply be too high, a fortiori, where the prosecution’s case has been described and conceded to be compelling. I have listened carefully to submissions of learned Counsel for the Applicant but unfortunately cannot be satisfied that the matters raised and relied on before me can be regarded as amounting sufficiently to exceptional circumstances which would warrant the release of this Applicant on bail pending his trial.

Application denied.

The Court.

ENDNOTES

1. R. v. Kong Ming Khoo (Unrep.) Criminal Case of 1991 per Ward CJ at page 2.