Salovi v Regina [2008] SBHC 77; HCSI-CRC 314, 349, 417 of 2008 (12 December 2008)

IN THE HIGH COURT
OF SOLOMON ISLANDS

Criminal Case No. 314 of 2008
Criminal Case No. 349 of 2008
Criminal Case No. 417 of 2008

IN THE MATTER OF APPLICATIONS FOR BAIL

BETWEEN:

JAMES SALOVI

CHRISTOPHER LUVUSIA

MICHAEL TALASASA
Applicants

AND:

REGINA
Respondent

Date of Hearing: 10 December 2008
Date of Judgment: 12 December 2008

Mr. Cade for James Salovi
Mrs. Anderson for Christopher Luvusia
and Michael Talasasa
Mr. H. Kausimae for Crown

DECISION ON BAIL

Cameron PJ

1. The three accused applied for bail. Each faces four charges of murder arising out of a shooting which occurred in east Guadalcanal on 3 September 2002.

2. Facts

The brief facts as alleged are that on 3 September 2002 a truck carrying a number of innocent men, women and children, on their way to a medical clinic, was ambushed by gunmen. Killed by gunfire were an elderly woman, two males aged 12 years, and a child aged about 5 years. 11 other people in the truck were wounded. The attackers left the scene after the attack without rendering any assistance at all to the victims.

3. Christopher Luvusia

Christopher Luvusia was granted bail by me on 10 December 2008. The reason was that the Crown acknowledge that his arrest was probably a case of mistaken identity. I am advised that it is likely that the four charges of murder he faces will be withdrawn on 19 December 2008, when the matter is next called in the Magistrate's Court.

4. James Salovi

In relation to James Salovi, six eye witnesses have given Police statements that the applicant was involved in the incident. Two of those witnesses have stated that they saw the applicant firing shots at them.

5. Mr. Cade points out that three of those six witnesses were interviewed for the first time in 2005, some three years after the incident. He also drew the Court's attention to prior inconsistent statements in respect of three of the six witnesses.

6. Undoubtedly the prior inconsistent statements will be used to test credibility of these witnesses at trial. The fact that some of these witnesses apparently did not come forward when the matter was first investigated in 2002 is also likely to be explored at trial. But these are trial issues, and at this stage it has to be said that on the face of it there appears to be a strong case against the applicant.

7. There is no evidence before the Court that the applicant attempted to evade Police during the 6 years following the incident. He is aged 28 years, has no criminal convictions, and has a wife and two young children. Over the last 6 years he has lived both in Choiseul, where his wife's family live, and Guadalcanal.

8. I note the long delay between the date of the incident and the date of the applicant's arrest on 17 July 2008. While that is unfortunate, from Detective Constable Walter Titilu's affidavit it seems that the investigation is ongoing and in excess of 10 alleged offenders are still being sought by the police. However, Mr Kausimae for the Crown has assured me that this ongoing investigation, and in particular the search for the outstanding alleged offenders, will not delay the trial of the four accused who have been arrested and charged (one of whom has not applied for bail). Mr. Kausimae advised me that when the matter is next called in the Magistrate's Court on 19 December 2008, it is expected that a date for the preliminary inquiry will be sought.

9. I mentioned that the alleged offending is of the most serious kind – the cold-blooded killing and wounding of a number of completely innocent men, women and children. The applicant faces no less than four murder charges arising from the killings, and the prosecution case against him appears strong. In those circumstances, notwithstanding family ties and no previous criminal history, I am not persuaded by the applicant and his wife that he will appear at trial if granted bail.

10. I consider there is an appreciable risk that the applicant will abscond if granted bail. He has the knowledge that a number of witnesses are likely to testify against him at trial, and that if convicted he will be sentenced to life imprisonment. Nothing in the affidavit material filed on his behalf satisfies me that such risk is not appreciable one.

11. For the same reasons, I consider there to be an appreciable risk of interference with witnesses, whose identities are known to the applicant through disclosure.

12. I decline James Salovi's application for bail.

13. Michael Talasasa

In respect of Michael Talasasa, he was arrested and charged with these murders in 2002, and after spending some time in custody, was granted bail. This was apparently because it was considered that the case against him was weak. The case against him was then dropped in about early 2003. During the time the applicant spent on bail, there is no suggestion that the applicant failed to appear in Court or attempted to interfere with witnesses.

14. Then on 15 November 2008 the applicant was futher questioned by police and rearrested and charged with the four alleged murders on 17 November 2008. He has remained in custody since.

15. The applicant is a married man aged 30 years. He has a wife and two adopted children. He has no previous convictions.

16. According to the affidavit of Detective Constable Junior Buin, the prosecution case against the applicant is now considered to be a strong one. In 2002, when the case against him was considered weak, the only witness who identified him as being involved was a Frances Saemala, who gave police a statement on 1 October 2002. However, in an earlier police statement he gave on 5 September 2002, he had not named Michael Talasasa.

17. In 2005, the police obtained statements from Mirim CeraVera and Oli Pelekea. In Mirim Vera's statement she starts that she saw the applicant, who she knew well, shoot at her.Oli Pelekea's statement is that "Mala", who she said was very well known in the area, was one of the gunmen. In Miriam Vera's statement, the applicant Michael Talasasa is referred to by the same name as "Mala".

18. Accordingly, with the further statements, the Crown case against Michael Talasasa is significantly stronger than it was in 2002.

19. I accept that the applicant voluntarily went to the police in November 2008 once his uncle told him police were looking for him. It does not follow from this that he will face his responsibilities if bailed. I also accept that while there is nothing to suggest he did not comply with his bail conditions when released on bail in 2002, the circumstances have now changed.

20. In 2002 the applicant knew that the Crown case against him was considered weak, and that is why he was granted bail. He had every incentive then to comply with his bail conditions, because the likelihood of the case proceeding against him and convictions being secured was not high. Equally, he now knows that the Crown case against him has strengthened significantly. He also knows that the consequences of a conviction for this horrendous crime will be life imprisonment.

21. Notwithstanding the fact that the applicant has apparently led a settled and crime-free life since 2002, I am of the view that with the knowledge the applicant has to the strength of the case against him and the consequences of a conviction, there is an appreciable risk that he will abscond if released on bail. Nothing in the affidavits filed by him and others satisfies me that such risk will not exist should he be granted bail. I am also of the view that there is a real risk the applicant, if bailed, will interfere with Crown witnesses. He knows the identity of them, and I understand at least some of them live in the sane general area as the applicant would be living if bailed. The fact that he has not interfered with witnesses in the 6 years since his first arrest is not a relevant factor, as the case against him was dropped in about early 2003, and he would have no reason to do so.

22. Michael Talasasa's application for bail is declined.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge