Gitoa v Regina [2007] SBHC 37; HCSI-CRC 447 of 2006 (2 February 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 447 of 2006

STANLEY GITOA AND WILLIAM MANDETEA

-v-

REGINA

(Mwanesalua, J.)

Hearing: 13 December 2006, 26, 29, 30 and 31 January 2007
Ruling: 2 February 2007

Mr. D Evans for the Applicants
Mr. P Bannister for the Respondent

RULING

Mwanesalua, J: This is an application for bail pending trial. The Applicants are Stanley Gitoa (Gitoa) and William Mandetea (Mandetea).

This application is based on the grounds that there is delay in the trial of the applicants; personal circumstances of the applicants; availability of surety for the applicants; absence of risk of absconding and the weakness of the evidence against the applicants. The Respondent opposed the application on the grounds that the applicants are charged with serious offences; the prima facie evidence against the applicants is strong and that there were aggravating factors in the Commission of the offences.

Gitoa was arrested by the Police on 7 November 2004. He was later charged with offences of murder, attempted murder, arson, intimidation, assault causing actual bodily harm and unlawful assembly. He was committed for trial to the High Court in October 2005. And is being remanded at the Rove Prison awaiting his trial.

Mandetea was also arrested by the Police on 7 November 2004. He was charged with the offences of murder, attempted murder, armed robbery, unlawful possession of firearm, intimidation, and unlawful assembly. He was committed for trial to the High Court in October 2005. He is also being remanded at the Rove Prison awaiting his trial.

The victim in the murder charge against both Applicants was a woman called Samua Pitakere. She and members of her family lived in a house at Tetere in 2001. This house was situated within the Tetere Prison compound on Guadalcanal. On the night of 30 November 2001, she was outside the house preparing her flowers for sale. Solomon Bokisia was sitting on the verandah close to her. He saw a group of men approaching them. There was moon light that night. He recognized Gitoa, Mandetea, Harold Saea and five other men in the group. Gitoa, Mandetea and Harold Saea were armed with guns. Mandetea and Gitoa pointed their firearms at Solomon Bokisia. Mandetea told Solomon Bokisia not to move. But Solomon Bokisia ignored that warning and escaped into the house. The men then fired shots into the house after him. Samua Pitakere was shot on her left leg and head. She died from the wound on her head that night.

Wilson Pitakere was also at Tetere when Samua Pitakere was shot. He saw the men who fired shots that night as well. He is the father of Samua Pitakere. He recognized Gitoa with the men. Gitoa admitted in his caution Statement that he was present when Samua Pitakere was shot. He was armed with a firearm and had fired it twice during the shooting.

Peter Kilua lives at Dadave village on Guadalcanal. He saw Gitoa entering Robinson Gelua’s house and set fire to the house. Gitoa admitted in his caution Statement that it was him who had set fire to the house. He did it because Robinson Gelua was passing information about him to the Police.

Diana Pitakere was at Dadave village on 25 November 2001. She drove her vehicle to Church for a meeting that day. She parked the vehicle outside the Church and attended the meeting. Mandetea confronted her as she walked to the vehicle after the meeting. Mandetea was armed with a gun. He pointed the gun at Diana Pitakere and ordered her to handover the keys of the vehicle to him. She told him that the keys were with Fr. Garimane. Mandetea then turned to Fr. Garimane and pointed the gun at him to give him the keys. Fr. Garimane was afraid of the gun and gave the keys to him. Mandetea took the keys and drove the vehicle away. Diana Pitakere is the mother of Samua Pitakere.

Statements of seven witnesses in support of an alibi to be raised by Mandetea during the trial were tendered to the court by Advocate for the Applicants. These statements tend to show that Mandetea was at Ngella on the night of 30 November 2001 when Samua Pitakere was shot and killed at Tetere. This court is of the view that the issue of alibi be raised in evidence during the trial, so that the evidence in the statements supporting it can be properly tested, weighed and assessed.

Gitoa is married with four children. His spouse and children lost his financial and gardening support since he was taken into Police Custody on 7 November 2004. Mandetea is also married with five children. His spouse and children lost his financial and gardening support as well. Further, his parents are old, and that his father is disabled due to a stroke which he had in 2002. Mandetea has an elder brother, and probably, other brothers as well to support his parents while he remains in custody pending his trial. It is accepted that the spouses and the children of the Applicants have lost their support whilst they remain in custody. However, the loss of such support is the usual consequence of the remand of spouse pending trial in serious offences like murder as in this case.

It is noted that the risk of the Applicants absconding if released on bail might to be remote. However, there was evidence of resistance by the Applicants prior to their arrest on 7 November 2004. That gave rise to negotiations between the Police and themselves regarding the way they should be arrested. They did not voluntarily surrender themselves to the Police as advanced on their behalf.

The Applicants say that there was delay in their trial. They were charged on various dates in November 2004. They were committed for trial to the High Court in October 2005. The information was filed on 27 January 2007. There was a delay of approximately 27 months from the dates they were charged.

The Applicants contend that they have a right to bail as they have not been tried within a reasonable time as provided under section 5(3)(b) of our Constitution. It is accepted that the Applicants have a right to be released on bail under this provision. However, in deciding whether to grant bail, for purposes of this case, this court would need to conduct a balancing exercise on the period of delay, the nature of the accusations against the Applicants, the nature of the evidence in support of the accusations, the severity of punishments which convictions will entail, the likelihood of interference with witnesses, and the financial and social integrity of the sureties.

A person who has been committed for trial to High Court can only be tried after an information is filed (see sections 233 and 234 of the Criminal Procedure Code (Cap.7). In view of these provisions, this case was only before the High Court pending trial for 7 days. It would now be possible to list the case for trial as the information had been filed.

The offences of murder, arson and armed robbery are extremely serious. Murder carries a mandatory sentence of life imprisonment, whilst arson and armed robbery both carry a maximum penalty of life imprisonment. I do not think that the delay in this case is unreasonable in view of the current backlog of cases pending trial before this court.

The evidence to support the charges on these serious offences is fairly strong and not weak as advanced on behalf of the Applicants. There were aggravated factors in the commission of the offences of murder and armed robbery. That is to say, that the Applicants committed these offence while armed with guns and in company of other persons. There is no evidence to show that the guns possessed by the Applicants were surrendered to relevant authorities. This court is not satisfied that the Applicants will not interfere with the witnesses if they were released on bail. The proposed sureties are related to the Applicants. There is no independent evidence to assess their financial and social integrity. I do not think that bail should be granted in this case.

The discretion to granted bail to the Applicants is refused. Order accordingly.

Francis Mwanesalua
Puisne Judge