Bonnie v Regina [2011] SBHC 123; HCSI-CRC 339 of 2006 (10 October 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

BADESTER BONNIE

V

REGINA

Date of Hearing: 7th October 2011
Date of Judgment: 10th October 2011

Mr. Kelesi for the Crown/Respondent.
Mr. Barlow for the accused/Applicant.

RULING ON BAIL APPLICATION

Apaniai, PJ:

1. This is an application for bail by Mr. Badester Bonnie ("Applicant") who has been charged with the rape of Jessie Rikolifia at Panatina in Honiara on the 5th March 2006.
   
2. The Applicant comes from Temotu Province but was living at Panatina when he committed the offence. He still lives there at the present.
   
3. The case first came before the Magistrate Court in Honiara on the 18th August 2006 for preliminary inquiries. At that hearing, the Applicant pleaded guilty to the charge. The case was then adjourned for sentence at the High Court.
   
4. At the end of that hearing, the Magistrate Court extended the Applicant's bail pending the High Court hearing. The Applicant then returned to his residence at Panatina where, as he says, he had since been living until his arrest on the 1st October 2011.
   
5. At the Magistrate Court hearing, the Applicant was represented by an expatriate solicitor from the Public Solicitor's office who, it seems, had left the country sometime after that hearing.
   
6. It appears that the case was then forwarded to the High Court and that the sentencing date was left for the High Court Registrar to decide and inform the parties thereafter.
   
7. From the affidavit by Sergeant Mary Maneforu, it appears that the date set for sentencing at the High Court was 15th August 2008, just one day short of 2 years after the Magistrate Court hearing. No explanation has been given for that delay.
   
8. The Applicant failed to turn up at the High Court on the 15th August 2008 and, according to the court records, no warrant was issued for his arrest until 29th March 2010, a lapse of 1 year and 7 months. Furthermore, the warrant was never executed until the 1st October 2011, a further delay of 1 year and 6 months. These delays are unacceptable and the reasons for such delays have not been explained to the court.
   
9. However, the Applicant, in support of his application, says that he has now moved on with his life since the offence. He says that he has been enrolled at the Solomon Island College of Higher Education ("SICHE") in 2008 to do a 3 year course in light motor mechanics and that this year is his final year at SICHE. He says he will be sitting his exams in November 2011. He therefore wants to remain on bail to enable him sit those exams. He further says that he now has a family with 2 young children and wants to continue supporting them until the High Court deals with his case.
   
10. He denies that his failure to attend the High Court hearing on 15th August 2008 was deliberate. He says that his expatriate solicitor had left the country after the Magistrate Court hearing on 18th August 2006 without informing him about the date for the High Court hearing and therefore he was not aware of that date.
    
11. He also says that since the Magistrate Court hearing, he had always lived at his house at Panatina and no one ever told him about the High Court hearing set for the 15th August 2008. He has also denied any knowledge of the fact that a warrant had been issued for his arrest.
    
12. He also says that since the offence in 2006, he has lived a normal life and has not been involved in any illegal activities. He says that, if granted bail, he will continue residing at his residence at Panatina and will attend court on the hearing dates. He says that he poses no risk of absconding or to interfere with crown witness.
    
13. The Respondent, on the other hand, blames the Applicant for this delay and points to the delay as a strong ground for refusing bail. The Respondent says that the Applicant has pleaded guilty to the charge in 2006 but failed to attend at the High Court for sentencing on 15th August 2008. The Respondent also says that a warrant of arrest was issued on 29th March 2010 and the police was only able to execute the warrant on the 1st October 2011. Nothing was said by Sergeant Mary Maneforu in her affidavit in regards to whether the police had ever made any attempt to inform the Applicant about the High Court hearing date and whether any attempt was made to search for the Applicant at his residence at Panatina during all these years or, if attempts have been made by the police to locate the Applicant, what those attempts were.
    
14. The delay experienced in relation to this case is certainly a matter of concern. However, I do not consider that the Applicant is to be wholly blamed for the delay. He admitted the offence during the preliminary inquiry hearings on the 18th August 2006 and therefore the matter had to be referred to the High Court for the formal laying of the information and the taking of the plea as well as the sentencing itself. The Magistrate Court cannot set hearing dates for the High Court. That has to be done by the High Court itself.
    
15. Clearly, at the end of the Magistrate Court hearing on the 18th August 2006, the Applicant did not know the date the High Court would hear his case. It is also clear, and I accept, that when the High Court finally set the hearing date for the 15th August 2008, the Applicant was not aware of it. His solicitor had left the country without telling him of the date and it appears also that neither the police nor the Public Solicitor's office had served him with any notice of that hearing date.
    
16. In any event, I am surprised that it took so long (almost 2 years) to fix a date for the hearing of a case in respect of which the Applicant had already indicated a guilty plea at the preliminary inquiries in the Magistrate Court. I am satisfied that the Applicant had failed to appear at the hearing listed for the 15th August 2008 because he was not made aware of that hearing. I am not satisfied that the Applicant was hiding from the police or in any way avoiding arrest.
    
17. It is not disputed that the Applicant is now a student at SICHE, having enrolled for Light Motor Mechanics in 2008. He has exams coming in November 2011. He must be allowed to prepare for, and sit, those exams.
    
18. In my view, it would be most unfair to him to be placed in custody and miss those exams. This is preparation for his future and that of his family. This is an important consideration. Even if sentenced to imprisonment, it is unlikely in my view, having regard to the circumstances of this case and the sentencing trend now being adopted by the courts in relation to rape cases, that the Applicant would spend more than 5 years in jail. Indeed, had it not been for the delay, the Applicant would probably have already completed whatever term of imprisonment he would have received for this offence. This was an offence which was committed approximately 5 and ½ years ago. It is unfortunate that the case is still before the court.
    
19. From the submission of counsel for the Crown, it seems that her main concern is the fear that the Applicant would not comply with any bail condition imposed on him. This fear stems from the experience of the police in failing to locate the Applicant during the past 3 years.
    
20. I have already said that the Applicant could not be wholly blamed for the delay. The Applicant had always lived at Panatina since 2006. He had not escaped anywhere. It seems to me that weaknesses in police intelligence are to be blamed for the inability by the police to arrest the Applicant pursuant to the warrant issued on the 29th March 2010. It follows therefore that I am not satisfied that the risk of absconding exists.
    
21. Furthermore, the Applicant has already admitted the charge against him at the Magistrate Court hearing. The risk of interference with Crown witnesses therefore no longer exists.
    
22. I am satisfied that this is a case where bail may be granted and I do so subject to the following conditions:-
    

[1] The Applicant is to reside at Panatina in Honiara, and must remain at all times within the boundaries of Honiara and must not go outside of those boundaries without an order of the court.

[2] The Applicant must report to Kukum Police station between 8am and 4pm each Monday and Friday of every week until trial.

[3] George Henry Luilamo, the surety, must pay into court the sum of $1,000.00 as soon as possible as security for the attendance of the Applicant at future hearings of the case and must ensure that the Applicant attends those hearings.

[4] The Applicant shall not be released until George Henry Luilamo has paid into court the said sum of $1,000.00.

THE COURT

Justice James Apaniai
Puisne Judge