Tangisi v Regina [2006] SBHC 88; HCSI-CRC 56 of 2006 (11 August 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 74 of 2006

JOHN TANGISI

-v-

REGINA

(NAQIOLEVU. J)

Date of Hearing: 2nd May 2006
Date of Judgment: 11th August 2006

For Appellant: Ms N. Stewart/Ms M. Swift
For Crown: Mr P. Little

RULING

Application for Bail

Naqiolevu. J: The applicant applies for bail whilst he is awaiting trial for the charge of murder. The applicant was initially charged for the offence of Manslaughter and appeared before the Magistrate Court at Gizo. He was remanded in custody on the 2nd of August 2004 for about 2 months. On the 6th of October 2004, the applicant was granted bail with reporting conditions. However the conditions were subsequently varied to enable the applicant to live with his family in Honiara. On the 20th of February 2006 the appellant was charged with the offence of Murder and remanded in custody.

Applicant’s Submission

Counsel for the applicant apply for bail on the following grounds:

1. Applicant had been released on bail on the original charge of Manslaughter and for a period of time had complied with his bail conditions.
   
2. The applicant is not a flight risk.
   
3. Counsel submit that whilst the crown has read several statements of witnesses in court the charge is debatable.
   
4. Given the current workload of the court it maybe awhile before the case is heard.
   
5. Counsel maintain these are exceptional circumstances.
   
6. The applicant has no history of interfering with witnesses.
   
7. No previous convictions.
   

Crown’s Submission

The crown object to bail on the following grounds:

1. The statement by the witness reveal the nature and seriousness of the offence.
   
2. The applicant had punched the victim who fell on the ground on the side of the road after which he dragged him to the side of the road then he proceeded to kick him on the head.
   
3. The applicant was initially charged with Manslaughter which was changed to murder.
   
4. There are no exceptional grounds to enable the court to exercise the discretion to grant bail.
   
5. The doctor’s report clearly reveal the cause of death was through the injury sustained to the head.
   
6. The crown object to the application.
   

BAIL - Murder - Treason

Bail in the case of murder or treason is rarely given because of the nature and seriousness of the offence, and the punishment it attracts.

Section 23 of the Criminal Procedure Code and Section 106 of the Criminal Procedure Code

"when any person has been taken into custody without a warrant for an offence other than "murder or treason", the officer in charge of a police station to whom such person should have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate magistrates court within 24 hours, after he has been so taken into custody, inquire into the case and unless the offence appear to the officers to be of a serious nature, release the person on his entering into a recognizance with or without sureties"

Kabui J, in Taisia –v- DPP([1]) said "Normally bail will be refused in murder cases. The reasons is obvious. They would not wish to face trial on the trial date and so may abscond"

In R-v-Dickson Maeni,([2]) Palmer J as he then was stated, at page 1, "It is correct that bail application in murder charges are rarely given by this court. It is because the nature of the charge and the severity of the punishment are very serious. But that does not mean that bail will not be considered or given".

Exceptional Circumstances

It seems to me that bail in charge of Murder or Treason maybe granted if an applicant can demonstrate that exceptional circumstances exist that will enable a court to exercise the discretion to grant bail in his favour.

In R-v-Kong Ming Khoo (Unrep) Criminal Case No unknown of 1991 ([3]) Ward CJ Stated at Page 2.

"Section 106 makes it clear, when the charge is murder or treason, it is only exceptional that bail is granted. Mr. Young seeks to distinguish between good reason, special circumstances and exceptional circumstances. I am afraid I do not feel such distinctions apply in the case. The effect of section 106 is that bail in murder cases will only be granted in exceptional circumstances. However whilst that places a heavier burden on the defense, the same considerations apply as in any bail application. The court must consider them all but bear in mind that it is only in rare cases that bail will be granted".

However, what constitute exceptional circumstances would have to be considered in each circumstances, of the case. In the case of Sisifiu-v-R Palmer J, as he then was said,

"No attempt however has been made in this jurisdiction to define or identify what these possible exceptional scenarios may be when bail may be considered in murder charges. Rather each case had been dealt with on a case by case basis"

I am of the opinion that I must consider the circumstances of this case to enable me to determine if there are any exceptional circumstances unique to the case.

Circumstances Of The Case

The applicant was initially charged with the serious offence of Manslaughter and remanded in custody for a period of 2 months on the 2nd of August 2004. He was granted bail on the 6th of October 2004, with reporting conditions.

The applicant continued to comply with his bail conditions which was subsequently varied to enable him to live with his family in Honiara. The applicant continued to comply with the reporting conditions and travelled to Gizo court every 28 days whilst awaiting the committal proceeding. This continued for a period of 18 months. On the 20th of February 2006 prior to the preliminary inquiry commencing, the applicant was handed a new charge sheet, charging him with the offence of Murder, upon committal to the High Court he was ordered to be kept in custody to await his trial.

I have no doubt that the applicant has demonstrated exceptional circumstances in this instance. He was charged with the offence of Manslaughter which is equal in seriousness with the offence of Murder. However when initially released on bail he complied with all conditions set by the court. He even travelled to Gizo from Honiara every 28 days at great cost and inconvenience to him and his family, in order to ensure he is in compliance with his reporting conditions. The applicant has clearly demonstrated he is not a flight risk, he clearly has not interfered with witnesses, and there is no likelihood of repetition of the offence. I am of the view that he has clearly demonstrated that he will continue to abide by any conditions that this court may impose, given his examplary behaviour in his previous bail conditions.

The court has carefully considered the crown’s objection to bail and the reasons advanced.

I am not satisfied therefore that the prosecution has discharged the onus on the balance of probability that the applicant should not be granted bail.

In the circumstance I have no doubt that he has demonstrated that there are exceptional circumstances that will enable me to exercise my discretion to grant bail in his favour.

Bail in the sum of $1,000.00, on condition that he report twice a week every Mondays and Fridays between the hours of 9.00am to 4.00pm at the Central Police Station.

ORDER

1. Applicant bailed in the sum of $1,000.00
   
2. Report to the Central Police Station every Mondays and Fridays between the hours of 9.00am to 4.00pm.
   

THE COURT

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^[1] 2001 SBHC 73
^[2] (Unrep. CRC 117 of 1999)
^[3] CRC 14 of 1999