Ome v Regina [2009] SBHC 68; HCSI-CRC 465 of 2009 (11 December 2009)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 465 of 2009

JOHN OME

V

REGINA

Date of Hearing: 7, 8th December 2009
Date of Ruling: 11th December 2009

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

RULING

Naqiolevu J:

This is an application for bail in respect of the applicant who is in custody.

1. Counsel for the applicant submit the applicant is charged with a series of offences which occurred on the 16th of September 2000. The offences are 2 counts of Attempted Murder, 1 count of Arson, Discharging Firearms in a public place, Going Armed in Public.

2. The matter was listed for trial on the 22nd of September 2008, and the applicant who was then on bail did not attend court and a bench warrant was issued for his arrest. Other co-accused were tried for the offences in relation to the incident. Some were found guilty while others were acquitted.

3. Counsel submit the applicant who was living at Kola Ridge had informed the police officer living next to him that he was not going to attend trial on the date unless the other people he knew to be involved are also brought to court. He however accepted that he should not have made this decision and that if he intend to run away he would have gone to Malaita. Counsel submit this is a misunderstanding and he has learnt a lesson.

4. The applicant has been in custody since the 26th of January 2009 when he was arrested and had been in custody since that time. Counsel submit that a co-accused has recently been arrested and looking at the listing for next year there is no indication that the trial will commence in the first 5 months of next year.

5. Counsel submit the applicant is entitled to his right to be presumed innocent, right to liberty and right to be tried within a reasonable time. Counsel submit the right to bail which is clearly outlined in the decision of Palmer CJ in the case of Kelesiwasi-v-R ([1]) where His Lordship said,

"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."

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".

6. Counsel submit the relevance of the case is that bail can be refused only on the basis of 3 factors:

1. Risk of re-offending

2. Risk of Flight

3. Risk of Administration of Justice

However there are a range of factors that are relevant to this consideration and these are:-

1. Family Ties

2. Seriousness of the Offence

3. Criminal History

4. Record of Absconding Bail

7. Counsel submit the applicant whether has a history of absconding, his justification for that action is explained due to a misunderstanding of the law. The primary reason for the application is the issue of delay of the trial of this matter and his right to be presumed innocent of all charges, right to liberty and to be tried within a reasonable time.

8. The applicant if released on bail may reside with his wife at Fulisango and his friend Mr. Markwarth can act as surety to secure his attendance in the sum indicated. The court could impose appropriate condition that ensure his attendance and alleviate risk such as interfering with prosecution witnesses, or absconding and re-offending.

Crown Submission

9. Crown counsel in objecting to bail file an affidavit by Dale Potter Adam in support of the objection. The affidavit clearly outlined the crowns concern on the application.

10. Counsel submit the charge are very serious, which involve the burning of a complete village. The applicant had been on bail and he has not advised any reasons of exceptional circumstances and no good reason why bail should not be granted.

11. Counsel submit the possibility of absconding and not turning up for his trial is real and the risk is too great for the court to take.

Bail – Presumption of bail in favour of the Accused

12. The court is of the view that bail is a right guaranteed under the Constitution, however it is not a automatic right as enunciated by Palmer CJ in the case of Kwaiga-v-R([2]) 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.

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

13. Clearly the court will consider bail if it can be demonstrated there is no risk of re-offending, a risk of flight, and risk of administration of justice.

14. The court whilst considering the risk of absconding take into consideration the applicants affidavit and explanation of his absence on the date of the trial. The applicant accepts that it is a mistake and have promised to abide by any condition the court may order.

15. The court having considered the support by his wife who promised to support him and the surety Mr. Markwarth who also prepared to provide a cash surety of $5,000 and he will ensure the applicant abide by any conditions. This clearly indicate the support by family and friends who will ensure he abide by any conditions the court may impose.

The court in all circumstances after carefully balancing the nature of the offence and the risk as outlined by the crown. The court is of the view that the trial of the case may not occur for a considerable time which clearly is in breach of his constitutional right. The court consider that the applicant has demonstrated exceptional circumstances to entitle him to be granted bail with strict condition.

ORDER

1. Bail granted in the sum of $5,000 cash, with Mr. Markwarth as surety.

2. He is to reside with his wife in their home at Fulisango.

3. Report to Borderline Police Post 3 days per week, Monday, Wednesday and Friday between 6.00am to 6.00pm.

4. Not to interfere with accused witnesses in the trial.

THE COURT

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^[1] Criminal Case No. 24 of 2004
^[2] ibid