Saea v Regina [2007] SBHC 158; HCSI-CRC 157 of 2006 (4 December 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 157 of 2006

HAROLD SAEA

-v-

REGINA

(Naqiolevu, J)

Date of Hearing: 4 December 2007
Date of Ruling: 4 December 2007

For Applicant: Ms K. Anderson
For Respondent: Ms. L. Klenning

RULING

Naqiolevu J:

1. This is a bail application by Counsel for the applicant seeking bail for his client whilst awaiting the trial for which he is charged with one count of Murder, one count of Attempted Murder, and a count for Unlawful Possession of Firearm contrary to section 200 of the Penal Code, section 5 (2) (a) (ii) of the Firearms and Ammunition Act and Section 215 (a) of the Penal Code.
   

2. This is the second occasion in which the applicant has applied for bail after his initial bail application was refused by the High Court on the 20th of October 2006.

3. Counsel for the applicant has succinctly put its case in support of the application and indeed the principles of law relevant on an application for bail, which the court must consider.

4. The Crown in response outlined its objection to bail and the reasons why the applicant should not be granted bail, this is supported by various authorities in the jurisdiction.

MATERIAL CHANGE IN CIRCUMSTANCES

5. The Court in considering the application at the outset must ask itself the question taking into consideration the clear principle of law. Has there been any material change in circumstance since the application was heard by His Lordship Justice Mwanesalua?

6. The Court further is of the view that generally on a fresh application for bail, it must only consider any new materials which were not before the court on the previous occasion when bail was refused.

7. In R – v- Nottingham Justice ([1]) Donaldson LJ, said

"There will always be a possibility that there has been a change, because more time will have elapsed. For example, the ability to interfere with witnesses diminishes as police inquiries progress and statements have been taken. Furthermore, as counsel pointed out in argument, it is well established that it is a proper exercise of judicial discretion to decide that the prosecution has unreasonably delayed in the preparation of its case and that, on that account, the accused should no longer be remanded in custody. But the starting point must always be the finding of the position when the matter was last considered by the court. I would inject only one qualification to the general rule that justices can and should only investigate whether the situation has changed since the last remand in custody. The finding on that occasion that Sch 1 circumstances existed will have been based on matters known to the court at that time. The court, considering afresh the question of bail, is both entitled and bound to take account not only of a change in circumstances which has occurred since that last occasion, but also of circumstances which, although they then existed, were not brought to the attention of the court. To do so is not to impugn the previous decision of the court and is necessary in justice to the accused. The question is a little wider than ‘Has there been a change?’ It is ‘Are there any new considerations which were not before the court when the accused was last remanded in custody?" (Underlining Mine).

8. In the case of R-v-Slough ([2]) Justices, Ex parte Duncan and Another Ormrod, LR, said
   

"Accordingly the Slough Justices were entitled to say on February 26, 1982, that they would not grant bail because there was no new material for them to consider. Unfortunately, however, the language in which they expressed their refusal was not happily chosen. In fact, it was all too apt to provoke the response which similar language provoked from Woolf J. in the later case of SLOUGH JUSTICES, ex parte Bennett. To say "we will not allow a fresh application for bail" implies a refusal to consider the question of bail. That was not, in fact, what was intended. The justices ought to have said that, as there was no new material before them relevant to the question of bail, bail would be refused, (Underlining mine)".

9. The Court has carefully considered the decision of Mwanesalua J in which His Lordship addressed the principles of law on the question of bail based on the submission before his court.
   

10. I am of the opinion before I exercise my discretion to grant or refuse a bail application afresh. I must be satisfied there are substantial grounds or indeed fresh grounds to enable me to do so, otherwise I would be acting as an appellate court on the decision of a brother Judge with equal jurisdiction.

11. I am fortified by the decision of Omrod LJ, in the case of R-v-([3]) Slough Justices, Ex parte Duncan and Another where his Lordship said,

"Before the discretion to refuse bail arises, the court has to be satisfied that there are substantial grounds for believing that one of the events described in paragraph 2 (a) or (b) or (c) will happen. It is the existence of substantial grounds for the belief, not the belief itself, which is the crucial factor. Accordingly, if one court finds as a fact that substantial grounds do exist at the time of its determination, a later court must accept this finding. Otherwise, the second court would

be acting as an Appellate Court and reversing the decision of a court of equal status, unless, of course, there has been a material change of circumstances".

12. The Court having carefully considered the decision of the High Court on the previous bail application, further having considered the objection to the application by the crown and the submission in support of the applicant is of the view that there clearly has been no material change or circumstances that will enable the Court to exercise the discretion to grant bail.

The Court in all circumstances refuse bail.

THE COURT

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^[1] [1980] ALLER, 775 (2)
^[2] (1982) MS Cr App P324
^[3] ibid