Tatave v Regina [2008] SBHC 12; HCSI-CC 477 of 2007 (29 February 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 477 of 2007

KOU TATAVE AND KELLY TATAVE

-V-

REGINA

(Naqiolevu, J)

Date of Hearing: 22nd February 2008
Date of Ruling: 29th February 2008

For Applicants: Ms N.Manning
For Respondent: Ms M.Chalmers

RULING

Naqiolevu J:

1. The applicants seek bail for various counts of Murder, Abduction, Wrongful Confinement and Assault, Wounding, and Arson for which they were remanded in custody in July and August 2007 respectively.
   

APPLICANTS SUBMISSION

2. Counsel for the applicants in support of the application submit the relevant considerations are, that bail applications are determined on their own merits and cited the two authority of Taisia –v- DPP ([1]) and Kelesiwasi –v- R ([2]) which clearly demonstrate that bail can be refused only on three basic factors. These are Risk of Re-offending, Risk of Flight and Risk to the Administration of Justice.
   

3. Counsel submit there is nothing before the Court to suggest there is a risk of flight which would warrant the continued remand of the applicants in custody. In relation to Kelly Tatave, he has a child and strong ties within his community. He will reside with his brother-in-law, a Kinai Pua of White River. Kou

Tatave is married with 3 children has close connection to his community and the young people in his church.

4. Counsel further submit that any concern of flight can be alleviated by reporting conditions and the imposition of a surety. Both applicants have no criminal record and no history of absconding from Court orders.

5. Counsel claim there is nothing before the Court to suggest that there is a risk of the applicants committing further offence should they be granted bail. The offences are alleged to have occurred in May 2003 and the applicants were not charged until July and August 2007. The Court can be satisfied that the risk of committing further offences whilst on bail is negligible.

6. Counsel on the issue of Risk to the Administration of Justice, submit there is nothing before the Court to suggest there is likelihood of the applicants interfering in any way with the administration of justice. The applicants have no criminal record and it is not alleged they have any contact with any witnesses in the intervening period between the commission of the offence and arrest.
   

7. On the strength of the crown’s case, Counsel submit the Crown’s case is not on its own a reason to refuse bail as the Crown must satisfy, on the balance of probabilities, that the strength of the prosecutions case is a relevant factor.

8. Counsel submit it appears the Crown’s case is not strong as it relies on the evidence of one witness (Job Kou) to prove the murder charge against the applicant Kelley Tatave. The witness evidence of beheading is inconsistent with forensic evidence, and with the other Crown witnesses in respect of the alleged offence of Murder, who said he was shot.

CROWN’S SUBMISSION

9. The Crown in response submit the Law in Solomon Islands is that in cases of Murder, the onus is on the accused to demonstrate exceptional circumstances warranting his bail. See Sisifiu-v-R ([3]) and R-v- Ming Khoo ([4]). In other words there
is a presumption against bail where an accused is charged with Murder.

10. Crown further submit the seriousness of a Murder charge raised a presumption against bail for the reason outlined and it is for the applicant to demonstrate as the law in this Country make abundantly clear, exceptional circumstances warranting bail.

11. Counsel further submit that it is simply illogical to release a person charged with murder so close in time to his committal, and which will involve a number of witnesses from the Weathercoast. Counsel submit there are no exceptional circumstances warranting bail and it should be refused.
    

12. Discretion to Grant Bail

The Court is of the view that bail is a right protected by the Constitution. Sections 5 Sub-section (2). However there is clearly a discretion whether to grant bail to an accused person. In Kelesiwasi-v- R ([5]), Palmer CJ said at page 1

"Bail is a right protected by the constitution (Section 5) (2). However there is a discretion regarding the granting of bail. It is not automatic. It may be refused in certain situations. It is for the prosecution to show on sufficient and proper information before the Court that the circumstances of the offence and/or the circumstances of the offender warrant the accused’s remand in custody."

His Lordship continued at page 2:

"The ultimate question whether bail should be refused or not in this case boils down to a careful balancing exercise by this Court on whether there is a possibility of absconding, interference with the course of justice and the likelihood of the commission of further offences."

13. It is clear that bail can only be refused on the basis of several factors and these are whether there is a risk of Re-offending, Risk of Flight or Risk to the Administrations of Justice.

14. I am of the view that these are the underlying principles that the Court must consider before bail will be refused.

15. The Court in considering the question of the Charge of Murder, which requires an applicant to demonstrate exceptional circumstances in order to be granted bail, is of the view that whilst there has been authority in this Court of the prerequisite, the Court is of the opinion that it clearly does not amount to a rigid jurisdictional requirement.

16. The Court consider what is of paramount importance is to approach the issue in a way that will not undermine the presumption of innocence and presumption of personal liberty as guaranteed by the Constitution. Furthermore it must not reverse the presumption in favour of bail, which clearly is also not the intent of the Criminal Procedure Code.
    

17. The Court is fortified by the decision of the Chief Justice in the case of Kwaiga –v- Regina ([6]) where His Lordship said,"

"In murder cases while bail may only be granted by the High Court it is important to bear in mind this presumption of innocence and presumption of liberty reflected in a prima facie right of an accused to bail; this must always be the starting point in any bail applications. The burden of proof however still lies with the Prosecution to show that on the balance of probabilities an accused should not be granted bail. Notwithstanding what was said by this Court in Regina-v-Kong Ming Khoo and Regina-v-Dickson Maeni that bail will only be granted in exceptional circumstances or rarely given, the Court is obliged to carefully consider each application for bail on its merits. It is important to appreciate that simply because an accused has been charged with the offence of murder it does not necessarily follow that he should be denied bail. The presumption of innocence and liberty do not permit such presumption to be made.

His Lordship continued

In considering bail, the Court is involved in a risk assessment. This entails assessing how much risk society should bear on one hand by granting bail and how much the accused should bear on the other by being remanded in custody or on conditional bail. If the risks are high such that society should not be exposed to that risk, then bail normally would be refused and the accused made to bear that risk by having his presumption of innocence and liberty curtailed even in the absence of a lawful conviction in a court of law"

18. I am of the view that the Chief Justice has correctly stated the Principle of Law that must be exercised in an application for bail in serious charges of Murder.

19. The Court having further considered the evidence of Jason Crawford and the affidavit filed in support and the police strong objection to the application, is of the view that ultimately it is for this Court to balance the risk assessment after hearing both sides that should determine at the end of the day which way the discretion should or must be exercised. To quote the Hon CJ in the Kwaiga Case ([7])

This risk assessment however is not as easy as it sounds because it entails a prediction of future behaviour, requiring the balancing of and measurement of what the defendant is likely to do in the future; which cannot be 100% accurate. Further much of that prediction is measured by what had happened in the past, which can be quite unreliable and prejudicial against the accused. In many instances as well, much of what is relied on by the prosecution is based on his interpretation of what the police had said had happened. It is important therefore that

the courts do not lose sight of the purpose and requirements of bail and what it entails. It is not what the police says which dictates whether bail should or should not be granted. It is the balancing of the risk assessment by the Court after hearing both sides which determines at the end of the day which way the discretion of the Court will fall. (Underlining mine).

20. The Court has taken into consideration that in similar application by Co-accused the Court have released them on bail with strict conditions, and no evidence has been advanced to indicate there has been any breach of the conditions.
    

21. The Court in all circumstances after a careful balancing of the risk assessment consider the prosecution cannot on the balance of probabilities, when all the evidence has been taken into consideration prove that risk of flight,interference with witnesses or reoffending will occur in the applicants case.

22. The court therefore in the proper exercise of its discretion grant bail to the applicants, however will impose very strict conditions.

ORDER

Accused bail in the sum of $500 with two sureties on conditions that:-

1. They reside at White River with their cousin Jacob Kobo Kaniwai.

2. Not to leave Honiara without the approval of the Court.

3. Not to approach or interfere with any witnesses involved in this case.

4. Not to commit any offence.

5. To report to the White River Police Post 3 days per week, every Monday, Wednesdays and Fridays between the hours of 9.00am – 10.00am.

6. To report to the Central Magistrates Court on the 8th of May for further proceedings.

THE COURT

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^[1] (Unreported Criminal Case 266 of 2001)
^[2] (Unreported Criminal Case No. 24 of 2004)
^[3] [2003] SBHC, 119
^[4] [Unreported Criminal Case 1991]
^[5] ibid
^[6] [2004] SBHC 93
^[7] ibid