Matepaza v Regina [2007] SBHC 7; HCSI-CRC 167 of 2006 (19 March 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 167 of 2006

JOHN MATEPAZA

–V-

REGINA

(Faukona J)

Dates of Hearing: 16th March 2007
Date of Judgment: 19th March 2007

Mr H Markley for the Applicant
Mr Fritz Patrick for the Crown

RULING

Faukona J: This is an application for bail by John Matepaza. The applicant and four others were charged for murder and other offences. The charges1 merged from an incident alleged to have occurred at Gizo, Western Province, on the 11th June 2000. On the date in question, about 5 am in the morning the applicant and his friends entered a workshop at the KHY area in Gizo, and shot dead the deceased, Sae Nare. They were armed with high powered guns.

The applicant was then arrested on 8th February, 2006, and since then has been kept in remand, at Rove Prison. On 6th July 2006, the first application was heard but was refused by this Court. This is the applicant’s second application for bail.

Any application for bail, before conviction, has to have its basis on the common law principle of presumption of innocence, which now has its roots in S.10(2)(a) of the Solomon Islands Constitution.

Bail is a right and protected by law. The granting of bail by the Court is a discretionary power which means it is not to be unreasonably withheld. Section 106(3) CPC (Cap.7) gives the discretionary power to this Court to exercise including granting of bail in murder charges. The onus is therefore on the prosecution to satisfy the Court on the balance of probabilities that the applicant should not be granted bail.

In turning to this application, there are three specific contentious issues arising out of the submissions:

1 The evidence.

2. Family obligations and duties.

3. Possible interference with prosecution witnesses.

Issues one and two are raised by the Counsel for the applicant, whilst the third issue is advanced by the Counsel for the Crown. Of the two issues advanced by the applicant’s Counsel, only the second issue is deposed by the applicant in his affidavit in support of the application. The issue of evidence has never been deposed by the applicant in his affidavit. I feel that in any application, the affidavit in support of such application must contain all the issues that Counsels wish to raise and argue before a Court. This is to ensure that arguments and submissions are focused on orderly and in patternalised fashion, avoiding unnecessary submissions and going astray out of context.

Despite the fact that issue one is not contain in the affidavit, it does not mean that it attracts no consideration. I have a duty and have to consider the totality of submissions as am obliged to.

Before considering the issues, I feel it is worth noting, that in this case, we are dealing with a murder charge, a charge everyone acknowledges to be serious and carries a mandatory sentence of life imprisonment. The assessment of evidence must be done cautiously and diligently. At this stage on the balance of probabilities.

The Evidence

This leads us to the first issue of evidence. I have the privilege to read my brother Mwanesalua’s J ruling in the first application. John Matepaza v Regina[1] and on page 1 paragraph 3 he states

........There is a para facie evidence against the first and second applicants. That evidence is made up of eye witness evidence. The evidence is strong and not weak as contended on behalf of these two applicants. Their applications for bail is refused."

In addition to that I have the privilege to read the relevant statements and I do concur with my brother Mwanesalua J. However, I wish to add that Counsels have agreed that there is only one eye witness. The only contention, is that the witness failed to mention or recorded in her first statement given to Police on 11th June 2000, the involvement by the applicant, but she did mention in her statements recorded on 2nd and 5th September 2005 respectively. The strength of that evidence can only be tested during the course of the trial. In furtherance, may I add, that there are circumstantial evidence available as well.

In the light of that I do not intend to venture further on the evidence as it has been decided upon and are quite clear.

Family Obligation and duties

On the second issue of personal circumstances or family obligation, the father is regarded as head of the family and expected to support and provide security. This social obligation will and always be on the father’s shoulders where-ever he lives. In attending family obligations, duties and problems, are they constitute reasonable grounds for not withholding granting of bail, or is it an exceptional circumstances to justify granting of bail. I agree with the Counsel for the Crown. In Susan Tamana v Regina[2] CJ Muria states on Page 2, paragraph 5, last sentence

"......Unfortunately, for the applicant, attending to family duties and problems do not constitute circumstances of the case so as to justify granting of bail pending appeal".

This is a ruling on another limb of bail but on the same principal. It is clear therefore that family problems, or duties, does not constitute exceptional circumstances to justify granting of bail. Other circumstances pointed out by the Counsel for the Crown in his written submissions are useful but not in contention.

Interference with prosecution Witnesses

There is a contention between the Counsels in regards to this issue. Counsel for the Crown asserted that there is likelihood the applicant will interfere with the witnesses who may be living in Gizo at this time. He is an influential person. The Counsel for the applicant denied this would occur, how would applicant, a former Police Sergeant, a man with some standing in the community would do that.

The issue of possible interference with prosecution witnesses and tampered with their stories are assumptions, or in other words risk assessments. We are presently assuming what would possible happen in the future without any certainty.

At times, at random, things not hope for, or unexpected do eventuate. In order to avoid being regretted for uncalculated risk, it is better to prevent it initially than to cure it. Things do happen as it happens at the times when we least expected.

I noted and consider the applicant is a former Police Sergeant employed in the Investigation Branch. He understands the charge and the end consequences if convicted. I agree with the Crown that the applicant is an influential person, and the only prosecution eye witness is in Gizo or in the Western Province. I calculated, it is quite risk for him to be around Gizo.

In the case of Regina v Leslie Kwaiga[3], the applicant is a former member of a military group, MEF, disbanded some years back. He was granted bail previously but had abused one of the bail conditions by interfering with a prosecution witness. In this case the applicant may also be a member of a militia group, The Black Sharks, according to circumstantial evidence, which also had been disbanded some years back.

Reference is made to this case as a guideline assistance, to assess the risk that may possibly occur. It may not occur, but it does happen as a matter of fact.

Upon consideration of the whole submissions, and the fact that the case has been set for hearing on 14/05/07, I must exercise the discretion vested on me, therefore I refuse granting bail. And I so do ordered accordingly.

THE COURT

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^[1] HC-SI CRC No.167 of 2006, Mwanesalua J (unreported)
^[2] HC-CRC No. 15 of 1995, Muria CJ (unreported)
^[3] HC-SI CRAC NO. 107 of 2006, Naqiolevu J (Unreported)