Regina v Buga [2009] SBHC 53; HCSI-CRC 115 of 2009 (5 October 2009)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Criminal Case No. 115 OF 2009

REGINA

V

AINAS BUGA, ALFRED ROFENI AND PAUL SONI

Heard: 25 SEPTEMBER 2009
Delivered: 5 OCTOBER 2009

Ms. A. Anderson for Applicants
Ms. R. Christensen for Respondent – DPP

RULING ON BAIL

1. Mwanesalua J: The applicants made their application under Section 106 of the Criminal Procedure Code for bail on such terms as this court thinks fit. Their previous application for bail to the Magistrate on 22 January 2009 had been refused. There is no published judgment in respect to the refusal for bail on that occasion.

2. This application is opposed by the respondent. Three grounds are being advanced to opposing bail. They are the seriousness of the alleged offences against the applicants; the risk of failing to comply with court orders; and the risk of interfering with prosecution witnesses.

3. All the accused were charged before the Magistrates’ court with assault causing actual bodily harm under Section 245; malicious damage under Section 326 (I); and acts intended to cause grievous harm under Section 224 (I) (b) of the Penal Code (Cap. 28). In addition, Ainas Buga and Paul Soni are charged each with one count of grievous harm under Section 226 and one count of common assault under Section 224 of the Code. These alleged offences arose from a sustained violent attach on three PPF Officers, three AFP Protective Services Unit Members and two Royal Solomon Islands Police Officers, who went to Koa Hill in Honiara, on 1 December 2008 at approximately 9.20pm, to arrest a co-accused in a robbery case.

4. The applicants were remanded in custody since they were arrested. Buga was arrested on 4 December 2008, while Rofeni and Soni were arrested on 2 December 2008. The applicants were committed for trial to the High Court on 6 February 2009. They pleaded not guilty to the alleged offences laid against them during the committal proceedings at the Magistrates’ Court. They do not have previous convictions and deny taking part in attacking the Police Officers at Koa Hill.

5. The applicants have been remanded in custody for ten months since their arrest. And no information has been filed since their committal for trial at the High Court on 6 February 2009. Because of the delay in filing the information their cases have yet to be listed for trial. The filing of an information is vital for the progress of their case in this court. His Lordship Palmer CJ, in the bail application of Kwaiga’ said: "The filing of an information under Section 233 of the CPC is crucial to the further progress of this case before this court as it is the process by which a case is commenced, until that is done, no action can be taken by the Registrar of High Court, especially to the listing of this case, the delay lies with the prosecution and any such delays must be viewed infavour of the accused in this bail application".

6. The reasons for delay in filing information here may be connected to the delay by the prosecution in obtaining formal medical reports from witnesses who were injured during the Koa Hill incident, but may have returned to their respective places of origin abroad. It is not known when such reports would reach the prosecution. As stated above, the applicants were arrested and detained. They have since been charged with the offences which they allegedly committed. But none of these offences are pending against them in this court as the information is yet to be filed. It is highly unlikely that their case would be heard within sixteen months on some unknown date in 2010. There is no right of infinite detention of persons with no prospect of charges been tried within reasonable time in this jurisdiction. On the contrary, such persons have a right to bail. Section 5 (3) (b) of the Constitution relevant provides: "....any person arrested or detained upon reasonable suspicion of having committed a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial".

7. Ainas Buga and Paul Soni were each committed for trial before this court with nine offences, while Alfred Rofeni with seven offences. The sentence for the most serious of these offences, under Section 224 (I) (b), carries a maximum custodial sentence of life imprisonment. The weight and strength of the evidence to prove them, a part from the malicious damage charge against one of the applicants, seem weak on paper. In general, the evidence may be challenged on identification during the trial as the alleged offences were committed at night.

8. The applicants do not have previous convictions. There is no evidence to support the argument that the applicants would fail to appear at trial or obey court orders. Buga says he would return to his children and wife, and live with his cousin brother, Danny Mana at Vura III, in Honiara, if he was granted bail. Mana confirms this arrangement, and is willing to be a surety for Buga. On his part. Rofeni says that he would return to his children and spouse, and they would live with his in-law, Max Oge and family at Lau Valley in Honiara. Oge confirms this arrangement, and is willing to be a surety for Rofeni. And Soni will also return to his children and wife to live in their own family home at Mbokona. His cousin brother Kevin Buga is willing to be his surety and re-engage Soni as a carpenter if was granted bail.

9. Appropriate bail conditions could be placed on the applicants not to reoffend or endanger the safety, welfare or property of any person or interfere with witnesses, or otherwise obstruct the cause of justice in relation to themselves or any other person.

10. In view of the circumstances alluded to above, the court decides that the applicants should not be kept in custody and bail should not be refused on this occasion. An order admitting a person to bail is not a final order. It may be revoked at anytime. Bail will therefore be granted pending trial, but subject to conditions. The bail conditions for Buga, Rofeni and Soni are set out in their bail orders respectively.

F Mwanesalua J
THE COURT