Maenisoa v Regina [2010] SBHC 40; HCSI-CRC 82 of 2010 (21 May 2010)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)
Criminal Jurisdiction

Criminal Case No. 82 of 2010

JOHN MAENISOA

V

REGINA

Date of Hearing: 14 May 2010
Date of Judgment: 21 May 2010

R Cavenagh for the Applicant
N Kesaka for the Respondent

RULING

Mwanesalua, J: This is an application for bail pending trial at the High Court. The Applicant is John Maenisoa. He has been in custody since 21 September 2009. He is charged with four counts of rape contrary to Section 136 of the Penal Code (Cap. 26). This offence carries a maximum sentence of life imprisonment.

The grounds advanced in support of his application are that: (1) there is a presumption in favour of bail; (2) there is presumption of innocence; (3) there is a high probability that he would appear for his trial; (4) he needs to be on bail in order to instruct his counsel to prepare his defence; (5) in order to provide financial and other support for his family and (6) that there is no likelihood that he would interfere with the evidence of the prosecution witnesses.

The prosecution opposed the application on two grounds. First, the applicant is likely to commit rape again with the victim, his daughter, before the trial if he is released on bail. And the second is that the application should be refused on the ground that the applicant is charged with very serious offences.

The victim alleges in her statement that the applicant committed his first offence on an unknown date in 2005 in the house where her family members were living in at Mbua Valley. The second offence was committed on 20 August 2009 during the day in Mr. Koke's house at Tasahe. The third offence was committed on 30 August 2009, in Mr. Koke's house at Tasahe during the night. And the fourth offence was committed on 12 September 2009, in Mr. Koke's house at Tasahe at day time.

There is evidence from the statements of Mrs. Walani and Mrs. Hou who were then living in Mr. Koke's house, confirming that the applicant slept at Mr. Koke's house on the night of 30 August 2009. This evidence confirms the evidence of the victim. Further, Mrs Walani saw the applicant going into the room with the victim during the day on 12 September 2009, on which occasion the victim stated that the applicant had sex with her.

As mentioned earlier, the applicant has been in custody since 21 September 2009. But this court merely had jurisdiction to hear this case when the information was filed on 9 March 2010 and the case is yet to be listed for trail. The defence submits that the applicant should be released on bail because he could not be tried within a reasonable time as provided under section 5 (3) (b) of the constitution. This provision contains a right for trial within a reasonable time, but if not, to be released on bail pending trial. However, an extension of remand may be justified where: (1) the defendant would fail to attend trial; (2) the defendant would interfere with evidence of witnesses, or otherwise obstruct the course of justice; (3) the defendant would commit an offence on bail; (4) it is necessary for purpose of the investigation; and (5) where it is necessary for the defendant's own protection.

There is a common law principle of presumption of innocence which is incorporated within section 10 (2) (a) of the constitution. This presumption applies in criminal proceedings where a person is charged with criminal offences, like the applicant here. The guilt or innocence of this applicant would be decided when the charges pending against him are heard by the court on dates yet to be set. There is fairly strong evidence against him on counts 3 and 4 of the information.

The applicant allegedly committed the alleged offences in counts 2 to 4 of the information at Mr. Koke's house at Tasahe. There is evidence that he had sex with the victim, when his spouse, the victim and himself were sleeping together during the first offence. Further, there were people present in Mr. Koke's house when the applicant had sex with the victim during the second, third and fourth offences. It is therefore likely that he may have sex with the victim again if he were to be granted bail.

It is obvious that the applicant would have to furnish detailed instructions to enable his counsel to prepare for trial. Under section 10 (2) ( C ) of the constitution he has a right to be given adequate time and facilities for the preparation of his defence. But for the meantime this case is yet to be listed for trial.

His spouse previously forced the victim to withdraw the charges now filed in the information. The applicant may further encourage her to do so again now that the information had been filed in court. That may result in interference with justice in this case. The court will therefore refuse to grant this application. Bail is denied to the applicant.

Order accordingly.

THE COURT