Baeoro v Regina [2009] SBHC 67; HCSI-CRC 224 of 2008 (11 December 2009)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 224 of 2008

CHRIS BAEORO

V

REGINA

Date of Hearing: 7th December 2009
Date of Ruling: 11th December 2009

For Applicant: Mr. Kesaka
For Respondent: Mr. Coates

DECISION

Naqiolevu J:

This is an application for bail by the applicant who seek bail to await his trial.

1. Counsel for the applicant submit the applicant was charged with one count of Murder on the 16th of December 2007. He was remanded in custody at the time of his arrest and has remained in custody since that date a total of 24 months.

2. The applicant has previously made an application for bail on the 19th of September 2008 and this is the only charge that he is currently facing. The application was refused bail in a judgment published by the court on the 22nd of September 2008.

3. A copy of the judgment is attached to the applicant’s affidavit in which he referred in paragraph 4. The judgment is apparent that bail was refused on the basis that there is a real risk that the applicant might interfere with witnesses. This is based on the statement of a particular witness who remembered overhearing the applicant stating words to the effect that he is in big trouble, and that the best course of action is to take was to run.

4. Counsel assert the statement has been denied by the defendant, but to revisit this issue would in effect be asking an appeal. The law on a bail application for the second time is such that there must be a change of circumstances or matters not put before the court previously.

5. Counsel assert the applicant come seeking bail as a result of a change in circumstance and the change flow from the delay in the trial which did not take place on the 28th of October 2009 and the 2nd of November 2009, which is beyond the courts power and the applicant.

6. Counsel assert the applicant enjoys or is entitled to his right to be presumed innocent, right to liberty and his right to be tried within a reasonable time. The trial of this matter is unlikely to take place this year and whether or not it will take place early next year would also be subject to the arrest of his co-accused who is currently at large.

7. Counsel submit the applicant is a good candidate for bail. He is 21 years of age, single and born out of four siblings. He is educated, with no prior previous conviction and no history of breaching any court order. He has been residing in Honiara at Koa Hill with his uncle and aunt.

Respondent Submission

8. Crown counsel object to bail on the following grounds:

a. he is charged with one count of murder,

b. he is the principle offender,

c. he is not entitled to bail given murder is a serious charge,

d. he is a flight risk,

e. evidence against the applicant is very strong,

f. a witness saw the applicant stabbing the victim,

g. there is a risk of interference with witnesses,

h. the applicant has made threats to a witness who came from the same village,

i. the delay in the trial proceeding is due to the co-accused not being available and this is not special circumstances.

Presumption of Bail

9. The presumption of bail must be in favour of the applicant and it is for the crown to prove that bail is not appropriate in the circumstances.

10. The court consider that bail is a right protected by the Constitution however it is not automatic and may be refused in certain circumstances. In Kwaiga-v-R([1]), Chief Justice Palmer 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.

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 the risk by having his presumption of innocence and liberty curtailed even in the absence of a lawful conviction in a court of law:

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

11. Clearly the court will consider bail if it can be demonstrated that there is no risk of the applicant reoffending, a risk of flight, or risk to the administration of justice.

12. Counsel for the applicant submit that there is nothing before the court to suggest there is risk of flight or the applicant committing further offence should he be granted bail.

13. The court is of the view that whilst it accept that murder is a serious charge, it must take into consideration the affidavit of the applicant who has stated that he will comply with any conditions of bail including residency conditions, and report conditions and curfew. He submit he has never escaped from police custody when arrested.

14. The court has taken into consideration the applicants family ties, his mother who regularly visits him and is willing to support him in complying with any bail conditions. The applicant’s support from his uncle and aunt who are willing to support him and provide a home for him with his family.

15. The court is of the view after a careful balancing exercise, the nature of the offence and the seriousness of the offence, the likelihood of the applicant risk of flight, risk of interfering with witnesses and administration of justice. The court after considering the delay in this matter proceeding to trial due to no fault of his own and which clearly is in breach of his constitutional right to a trial within a reasonable time. The court having considered the strong family ties is of the view this is an exceptional circumstance and appropriate case to grant bail. However will set very strict conditions to ensure the risk as raised by the crown is avoided.

ORDER

1. Allow bail in the sum of $1,000 with his mother as surety.

2. He is to reside with is Uncle and Aunt at Koa Hill.

3. He is not to have any contact whatsoever, with any of the witnesses in this trial.

4. Report to Chinatown Police Post every Monday, Wednesday and Friday between the time of 6.00am to 6.00pm.

5. He is to remain in the house between the hours of 6.00pm to 6.00am 7 days a week.

THE COURT

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^[1] [2004] SBHC 93