Allen v Regina [2008] SBHC 75; HCSI-CRC 293 of 2008 (12 December 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 293 of 2008

IN THE MATTER of an application for bail pursuantto the Criminal Procedure Code

BETWEEN:

BOBBY ALLEN

TONEY SANGA
Applicants

AND:

REGINA
Respondent

Date of Hearing: 28 November 2008
Date of Decision: 12 December 2008

Ms. N. Manning for Applicants
Ms. Townsend for Crown

DECISION ON BAIL

Cameron PJ.

1. The two co-accused apply for bail on a charge of murder. The accused are brothers, Toney Sanga being 16 years old, and Bobby Allen 18 years. Neither have been charged with a criminal offence before this incident.

2. The victim of the killing from which the murder charge arises was an Eric Maebiru of Burns Creek, Honiara. It took place at Burns Creek, that being the residential area where the victim lived, and also the area where the two accused and their family live. The two accused and their family are Malaitans. The victim's family continue to live at Burns Creek.

3. The Crown case is that Bobby Allen and Toney Sanga were part of a group which attacked another group which included the victim. This was said to be by way of retribution for being chased away from a dance causing problems. Several eye witnesses have given statements to the police saying they saw Bobby Allen with a knife, and saw him stab and kill the victim with it. Bobby Allen gave an interview to the police in which he admits stabbing the victim with a knife. He claims, though, that the victim though, that the victim first came at him with the knife, which he then removed from the victim before stabbing him. On this basis his counsel contends that self-defence will be a live issue at trial.

4. However, it is noted that none of the witnesses who saw Bobby Allen with the knife saw the victim armed with a knife at anytime.

5. On the face of it, then, the Crown's case against Bobby Allen appears strong. The charge is a most serious one, carrying on conviction a mandatory sentence of life imprisonment. The other person the Crown alleges was the principal offender, a John Kabolo who also lived at Burns Creek, evaded arrest and continues to do so. Police have information that points to him having fled to Malaita, along with another alleged co-offender Mr. Silva.

6. I consider that were Bobby Allen to be released on bail then there would be an appreciable risk that he too would abscond, most likely to Malaita, as did two of his alleged co-offenders. I also consider that there would be a risk that he would attempt to influence or interfere with Crown witnesses, several of whom are from the same residential area as Bobby Allen, Burns Creek, and therefore would be easily accessible to him. There appears from the affidavits to be an ongoing offer from several Brothers of the Church of Melanesia at Tabalia, West Guadalcanal, to have the accused live with them. While that would reduce the risk of interference with the witnesses, it is insufficient to persuade me that Bobby Allen should be granted bail. In particular, the risk of absconding would remain a real risk.

7. I decline to grant bail in the case of Bobby Allen.

8. As to Toney Sanga, the Crown case against him appears relatively weak. While from witness statements he appears to have been part of the group who confronted the victim's group, a number of witnesses have stated that he was not armed and did not take part in the violence. Only one witness states that Toney Sanga was armed with a chisel, but this is in conflict with the statements of several other eye witnesses, who say he was not armed.

9. Because the Crown case against Toney Sanga is not strong, and given his young age of 16 years, the Crown does not oppose bail.

10. While I still have a concern that there is some risk of Toney Sanga absconding, any motivation to do so would be lessened by the fact that the case against him is not strong. That, together with the fact that he will live at Burns Creek with his family including his father Mr. Evan Kusilefo, a prison officer of 23 years experience, and his young age, persuade me that this is an appropriate case to grant bail. Residential, reporting and non-interference with Crown witnesses conditions will apply.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge