Liva v Regina [2006] SBHC 7; HCSI-CRC 013 of 2006 (3 March 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 585 of 2005

BEN LIVA AND BELA PITU

–v-

REGINA

(KABUI, J.).

Date of Hearing: 1st March 2006
Date of Ruling: 3rd March 2006

R.B. Talasasa for the Crown
S. Lawrence for the Applicants

RULING

Kabui, J.: Ben Livah and Bela Pitu are alleged to have committed murder at Paeloqe village some distance away from Gizo town on 26th October 2005. They are brothers. They have mixed parentage. That is, their father was from Nggella and mother from the Western Province. Their mother is still alive and lives at Paeloqe. Paeloqe village is on the Island of Gizo in the Western Province. They had voluntarily surrendered themselves to the Police at Gizo following the alleged murder and had been arrested and detained in Police custody the same day the murder was committed. They are now in Rove Prison awaiting further appearance in the Magistrate Court. Police investigation into the alleged murder has only been partly completed as a few more witnesses’ statements are yet to be taken by the Police.

The Magistrate Court in Gizo had remanded them in custody pending Police investigation. They filed their bail application as far back as 1st December 2005 but had not been listed for hearing until it was heard on 23rd February 2006 and again on 1st March 2006. Their case is that they both should be released on bail with conditions.

The Crown opposed their bail application because of risk of flight and the possibility of interference with witnesses. The nature of the offence, its serious consequences and the incomplete investigation of it would suggest that it would be prudent to refuse them bail until investigation is fully completed. It would however seem that the bulk of the investigation has been completed and the Police Docket is currently in the possession of the officers of the DPP in Honiara.

I do not however know the strength of the Crown case as no evidence was made available to me on this point. Interference with witnesses by the two accused is unlikely to happen because both accused say in their respective affidavit that if they are granted bail, they will not return to Paeloqe but to Tumulighoghu, their village, in Nggella. They will be very far away from Paeloqe village where witnesses are resident. Even Uhgele on Rendova is far away from Gizo and Paeloqe where Ben Livah prefers to reside if granted bail. The fact that the residents of Paeloqe village do not want them back there is understandable. The fact is that they will not return to Gizo and then to Paeloqe. Feelings are still high there because of the allegation against them and their personal security cannot be guaranteed at this stage.

The only point of real contention is the risk of flight. Both of the accused are of good character. Each of them does have children, wives and community ties in Nggella through their father. Their having surrendered voluntarily to the Police at Gizo is a sure sign of honesty and remorse.

Ben Livah wishes to reside at Ughele on Rendova Island in the Western Province with his wife and family. His wife comes from that village. Two of his children go to School there. He had been to Tumulighoghu only once but his brother and other close relatives do live there.

Bela Pitu, on the other hand, had lived in Tumulighoghu previously and like Ben Livah, his other bother and close relatives do live there also. He prefers residing at Tumulighoghu if he is granted bail.

I think it is important that the families of the two accused are resettled in their father’s village in Nggella away from Paeloqe before their trial commences. They will have to, at the appropriate time, repatriate their families from the Western Province and resettle them in their father’s village in Nggella. They would need time to do this. I am sure the welfare of their children and families are paramount in their minds. This bail application is not, in my view, creating an opportunity in order for them to escape from the law. I do not think so in this case. It is obvious that they wish to resettle their families before they face the law. That is their wish.

I however must bear in mind that the charge against them is one for murder. They have to establish exceptional circumstances to convince me that they are entitled to bail in this case. The low risk of flight is not and cannot be an exceptional circumstance. However, it is an important factor in this application. An added factor is the uprooting of their families from the Western Province and resettling them in Nggella in the Central Islands Province or elsewhere for that matter. The need for transport, time and money and the presence and supervision of the two accused are matters of concern to them. It is quite an undertaking for them in this case. The logistics of the sudden resettlement of the two families over a short period of time can amount to a circumstance of exceptional nature in this case.

There is evidence of a circumstance of exceptional nature in this case. It is brought about by the mixed parentage of the two accused, their marrying in the Western Province, settling there with their wives and children, committing the alleged murder there and thus being disliked by their hosts had resulted in their having to be dislodged and leaving Paeloqe perhaps for good. This means having to return to the land of their father in Nggella in the Central Islands Province with their families. Whilst they are in custody, they cannot attend to the repatriation of their families in this regard followed by resettlement. The other members of their families will of course help with money etc. but the daily supervision and attendance to the family matters will be on their shoulders as a matter of common practice. I regard their case as presenting exceptional circumstances.

I will grant them bail on the rising of the Court with the following conditions-

1. Ben Liva to reside at Tumulighoghu village on Nggella in the Central Islands Province or at Ughele village on Rendova Island in the Western Province until trial on a date to be fixed.
   
2. Bela Pitu to reside at Tumulighoghu village on Nggella in the Central Islands Province until trial on a date to be fixed.
   
3. Bela Pitu to report to Tulagi Police Station once every week.
   
4. Both two to attend their trial on the date to be fixed.
   
5. Each of them to contact their Solicitor in Honiara once a month.
   
6. Not to travel back to Paeloqe until their trial date.
   

Bail is therefore granted with the above conditions. I order accordingly.

Frank O. Kabui
Puisne Judge