Regina v Gwao [2011] SBHC 1; HCSI-CRC 481 of 2010 (15 February 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 481 of 2010

REGINA

V

Henry GWAO

Ms Walenenea for the Crown
Mr Barlow for the Applicant/Defendant

Date of Hearing: 9th February 2011
Date of Judgment: 15th February 2011

Decision on Bail application
(Chetwynd J)

1. Henry Gwao is charged with the murder of Edmond Pairangi. He was charged on 15th February 2010. Following a long form preliminary inquiry before the Chief Magistrate on 17th November 2010 he was committed for trial before the High Court and remanded in custody pending trial. He has been in custody since being charged.

2. Mr Gwao has been remanded in custody due to the operation of S.106 of the Criminal Procedure Code Act[1]. Subsection 1 says:-

Subject to the provisions of section 23 where any person, other than a person accused of murder or treason, is arrested or detained without warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person may in the discretion of the officer or court be admitted to bail with or without a surety or sureties.

(Section 23 refers to bail being granted by the Police when a person is first taken into custody and is not something I need consider here.) Subsection 106(3) says:-

Notwithstanding anything contained in subsection (1), the High Court may in any case direct that any person be admitted to bail or that the bail required by a Magistrate's Court or police officer be reduced.

It is clear from S. 106 where the accused is facing a charge of murder, the Magistrates' Court is precluded from granting bail and bail can only be granted by the High Court. The accused filed his bail application in the High Court on 24th November 2010 shortly after his committal.

3. In submissions Mr Barlow says the court has unfettered discretion to grant bail. By and large I would not disagree with him. However, it has long been settled in this jurisdiction there are particular considerations when a court is considering an application for bail and when the charge is one of murder. Ward CJ's judgment in the Khoo case [2] is still perfectly good law. He said, "...section 106 makes it clear, when the charge is murder or treason, it is only exceptionally that bail is granted." It seems to be suggested the Chief Justice's judgment in the Kwaiga case [3] cited by Mr Barlow changed that the law. In my view nothing said by His Lordship in Kwaiga detracts from what Ward CJ said in Khoo. In Kwaiga His Lordship repeated and expanded on what he had said in the earlier case of Buarafi [4] and in which he referred to the helpful comments by Kabui J in the case of Karawaisi Taisia [5].

4. The distinction between cases involving murder and treason and those not involving those serious matters is set out by Ward CJ [6]. He said:-

"The terms of section 106 make it clear that the onus is on the defence in a murder case to demonstrate this is an appropriate case for bail".

He later says:-

"What are the factors the court must take into account when considering bail?

The first is that section 106 makes it clear, when the charge is murder or treason, it is only exceptionally that bail is granted. Mr Young seeks to distinguish between good reason, special circumstances and exceptional circumstances. I am afraid I do not feel such distinctions apply in this case. The effect of Section 106 is that bail in murder cases will only be granted in exceptional circumstances. However, whilst that places a heavier burden on the defence, the same considerations apply as in any bail application. The court must consider them all but bear in mind that the effect of section 106 in a case involving a charge of murder or treason means it is only in rare cases that bail will be granted."

5. The prime concern of any court considering any application for bail is whether the accused will attend his trial. As is amply set out in the several cases referred to above and as is amply set out in other cases referred to in those cases, there are a number of considerations to be bourne in mind. One of those would be the strength or otherwise of the case against the accused. This is the main plank of the application before me. The defence say the exceptional circumstances I can find relate to the weakness of the evidence against the Accused.

6. The Crown case is that there was a fight at Mbokonevera 3 sometime on 1st February 2010. The victim ended up in a drain or culvert 3.9 metres deep. He was taken to hospital, treated for a cut or cuts and discharged. Some three hours later, whilst at home, he died. The Crown say he died as a result of ingesting or swallowing soil and secretions whilst he was in the drain or culvert. The Crown case is during the fight the victim was pushed into the culvert or punched and fell into it and evidence will be adduced to show that the Accused and a Co-accused fought with and punched the victim and others. There are said to be 29 prosecution witnesses and 3 exhibits.

7. The Defence say there is no evidence the Accused assaulted the victim and no evidence he assisted aided or encouraged others to assault the victim. The Defence accepts there is evidence the Accused assaulted someone other than the victim but it is said the evidence shows that other person fell down on the road and not into the culvert. The Defence maintain the evidence clearly shows the Co-accused was responsible for the victim ending up in the drain. They refer me to three witnesses, Junior James, Danny Junior Ririko and Watson Lamae.

8. The evidence of Junior James is that the Co-accused pushed three people into the culvert. He saw Mr Gwao punch another person who fell on the road. Danny Junior Ririko will give evidence that he knows Kiri (the Co-accused) and he saw him push "the first two" into the drain "before him and Gwao fight with the three persons". He also says, "I saw Kiri is the person that pushed the two on to the culvert". Wilson Lamae will give evidence that he saw someone whose name he doesn't know push "Hendry and Naku" into the drain. That person then went up to the victim and punched him in the face and the victim "fell over into the drainage". At the same time another person punched Wilson Lamae. The Defence say this makes it clear the Accused did not assault the deceased.

9. The evidence of these three witnesses may well cast doubt on the prosecution case but as I do not know what the other 26 witnesses will say it is very difficult for me to come to any conclusion that the case against the Accused is so weak as to constitute exceptional circumstances. I am not satisfied, on this point, the Defence have established that there are exceptional circumstances.

10. It is also argued there are exceptional circumstances to be found in the difficulties the Crown has in showing a link between what the Accused is said to have done and the cause of death of the victim. I am referred to an excerpt from an autopsy report. That says, "he (meaning the victim) probably died from aspiration of soil and secretions into the airways. However a factor contrary to this is that at the emergency department the respiratory rate was normal and he did not show any distress according to the ED record". I accept that piece of evidence in itself may create difficulties for the Crown. Again however, I do not know what any of the other witnesses will say or even if there is any other medical evidence. I also accept that the excerpts of evidence quoted from other witnesses shows the victim to have been very drunk. I do not accept it has been established that the causal link between the Accused's actions and the death of the victim is so nebulous or uncertain as to establish exceptional circumstances.

11. I would reiterate at this point what was said in the Khoo case as set out in paragraph 4 above, the burden of establishing special circumstances is on the Accused.

12. Mr Barlow suggested the time the Accused has spent in custody constitutes special circumstances. I referred Mr Barlow to the judgment of Goldsbrough J in the Bartlett case [7]. That decision sets out very helpful guidance as to what could be considered excessive, undue or unjust delay in bringing a Defendant to trial. In this case the Accused has been in custody less than a year. I do not believe such a period of detention before trial on a murder charge would be considered excessive or unjust in any jurisdiction. It is correct that undue delay in bringing a case to trial may demonstrate exceptional circumstances but following the guidance in the Bartlett case I would suggest we are still some way off that point in this case.

13. For all the reasons set out above I am not satisfied that any exceptional circumstances exist which would enable me to grant bail to Accused at this time. I refuse the application.

Chetwynd J

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^[1] Criminal Procedure Code Act [Cap. 7]
^[2] R- v- Kong Ming Khoo unreported Criminal case 1991
^[3] Kwaiga –v- Regina Criminal Case 333 of 2004
^[4] R –v- Buarafi Criminal Case 200 of 2002
^[5] Karawaisi Taisia –v- DPP Criminal case 266 of 2001
^[6] See Khoo ibid
^[7] Alex Bartlett –v- Regina Criminal case 427 of 2005