Tara v Regina [2005] SBHC 44; HCSI-CRC 069 of 2005 (8 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 69 of 2005

ENOCH TARA

-v-

REGINA

High Court of Solomon Islands
(Palmer CJ)

Date of Hearing: 3^rd March 2005
Date of Judgment: 8^th March 2005

M. Anders for the Applicant
P. Bannister for the Respondent

Palmer CJ: The Applicant applies for bail under section 106(3) of the Criminal Procedure Code (“CPC”) pending hearing of his case. He has been charged with the murder of his eldest child daughter aged about 7 months old.

The offence was alleged to have been committed on or about 9^th March 2002 at Kirighi Isabel. No complaint however was lodged until on or about 7^th March 2004. The Applicant was later arrested and charged for the offence on 16^th March 2002, some two years after the alleged incident. He has been remanded in custody since.

Learned Counsel for the Applicant submits there are exceptional circumstances evident in this application and which warrant granting of bail. Learned Counsel submits the case for Prosecution is weak fraught with inconsistencies, that a complaint was not lodged until some two or so years later after the alleged incident, that there is no risk of absconding on the basis that the Applicant was residing with the Complainant (his wife) after the alleged incident and at time of arrest he was living with his uncle in Honiara and that since his arrest he has not contacted his wife (complainant).

Learned Counsel for the Respondent on the other hand submits that the case for Prosecution should be taken at its highest, that the matters relied on do not amount to exceptional circumstances. Learned Counsel relies on the case of R. v. Philip Tagea, Amos Teikagei and Damaris Teikagei^[1] in support of his submission that the time to deal with issues of evidence will be at trial and therefore questions about whether prosecution case is weak or not should not weigh heavily in the mind of the court when it comes to exercising its discretion on bail.

The case for Prosecution is dependent on the statements of two key witnesses; the wife ("Complainant") and Isabella Nae, ("Isabella"), both were present at the time the incident was alleged to have occurred. In her first statement, the Complainant alleges the baby ("Deceased") was lifted out from her and with his left hand holding onto the Deceased, the Applicant struck the bottom part of the neck of the Deceased with the blunt edge of the knife he was holding in his right hand. She stated in her first statement that the Deceased was dead when she was given back to her. She also said that the Applicant ran away to Lelegia village and boarded the M.V. Isabella to Honiara the next day. In her second statement obtained on the next day 8^th April 2004 however, she did not describe the Applicant picking up the Deceased, instead she described him as lifting up his hand with the knife in a position to strike them with it but without actually saying that a blow with the knife was delivered. She said that the Deceased was watching the Applicant at this point of time and she noticed that the Deceased’s appearance immediately changed when confronted in this manner; her eyes turned white and the iris part of her eye withdrawn. She said nothing about having been struck with the blunt edge of the knife.

The second direct witness, Isabella confirmed the second statement of the Complainant seeing the Applicant with the knife raised in his hand in readiness to strike the Deceased on the back of the Complainant. She however closed her eyes at the crucial time and screamed. She did not witness whether the knife actually landed on the Deceased or not. She observed however when she opened her eyes again, that the child was shaking and had to be rushed to Lelegia Clinic for medical attention.

The next witness who arrived immediately after the alleged incident was Ida Nele, ("Ida") daughter of Isabella. She confirmed that the Deceased was shaking when she arrived, her eyes open but the iris part of her eyes withdrawn or could not be seen. She helped to carry the child to the Clinic. She observed the child’s body was limp and that only the left side of her body was moving, the right side was inert.

In the statement under caution of the Applicant obtained by Police on 16^th March 2004, the Applicant seemed to concede that some trauma may have been caused on the head of the child by the handle of the knife he had on his left hand when he carried the Deceased with his hands. He denied however any intentional action with the knife as alleged by the Complainant.

The statements disclose that the subsequent actions of the Complainant as well as that of the Applicant immediately after the alleged incident are not ordinarily consistent with that a man who had or may have committed a murder. The Applicant accompanied the Complainant with the child to both clinics and was with them throughout until the child passed away in the evening.

The statement of the nurse aid who attended the child at Lelegia Clinic merely described overhearing the Complainant and Applicant arguing about the actions of the Applicant short of any deliberate blow. She overhead them arguing about the Applicant having struck the floor with his knife and which appeared to have resulted in the sudden change in the appearance of the child. She did not hear anything from them about the child being struck on the head with a knife. According to her report and that of the registered nurse at Konide Clinic, they did not notice any injuries during physical examination of the child.

The post-mortem report on the Deceased after exhumation of the body was conducted some two years later on or about 8^th May 2004. The pertinent part of that report identified a "transverse oriented linear 9 mm fracture through the left lateral edge of the occipital bone". The report concluded that such observation was consistent with a “blunt force trauma” applied to the head and resulting in the death of the Deceased.

On those statements and observations, the Prosecution case if the murder charge is to be sustained, basically is that the Deceased was struck on the back of the head with the blunt edge of the knife following an argument between the Complainant and the Applicant resulting in the subsequent death of the Deceased.

When the totality of the material raised in the statements is considered this court cannot ignore the clear discrepancies in the statements of the Complainant from the outset, the post-mortem report as it relates to that material, the statements from other witnesses and the subsequent conduct of the parties after the alleged incident. These are important considerations when assessing the risk of absconding for purposes of determining whether bail may or may not be granted. In my respectful view the risk factor that the Applicant will deliberately avoid trial is minimised in the circumstances of this case.

I take into account as well the contents of the affidavit of the Applicant filed 11^th February 2005 in which he refers to a fixed address prior to his arrest and which he says is still available should he be released on bail, as well as his employment history.

He has also filed in support of his application the affidavit of Charles Aiwosuga who has indicated that he is willing and able to act as surety for the Applicant.

On the risk of possible commission of further offences, I am not satisfied there is material before me which would give rise for concern. The same applies to the question of possible interference with witnesses. The key witnesses are the wife and the auntie of the wife and others who it seems all reside at Isabel. The possibility of interference or communication is minimal. The Applicant states that prior to his arrest he and his wife had been separated and had not been in contact since. He says he has no intention of contacting her or others.

In the circumstances I am prepared to grant bail on the following conditions:

(i) That the Applicant provides two sureties, one of who should be Martin Karawi in the sum of $1,000.00 each for the purpose of ensuring that the Applicant turns up for his trial which has been fixed to commence on 8^th August 2005 at 9.30 am.

(ii) That he resides with Martin Karawi at his residence in Honiara (location/address to be provided to the Court).

(iii) That he reports on a weekly basis to the Central Police Station not later than 10.00 am each Friday until trial.

(iv) That he does not leave the town boundary without leave of the court but is at liberty to apply for variation if there is a need for it.

(v) That he does not communicate with witnesses to this case; in the case of his wife, save for making arrangements to have access to his daughter.

THE COURT

[1] HCSI-CRC 01495, 29-01-96