Gitoa v Regina [2011] SBHC 154; HCSI-CRC 440 of 2011 (15 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

SIMON GITOA

v

REGINA

Date of Hearing: 13th December 2011
Date of Judgment: 15th December 2011

Ms. Driu for the Crown/Respondent.
Mr. Barlow for the accused/Applicant.

RULING ON BAIL APPLICATION

Apaniai, PJ:

Introduction

1. The applicant, Simon Gitoa, is charged with the murder of Bernard Salo ("deceased"). It is alleged that the applicant murdered the deceased on 22nd May 2010 at Kabani village, North East Guadalcanal.
   
2. The applicant was arrested on 23rd May 2010 and has been in custody since then. He now applies for bail.
   

Grounds for seeking bail

3. In support of the application, the applicant has filed 2 affidavits, one sworn by himself filed on 1st November 2011 and the other sworn by John Salo filed on 22nd November 2011. John Salo is the brother of the applicant and has availed himself to be the applicant's surety in the sum of $1,000.00.
   
4. In his affidavit, the applicant says that he is a married man with 6 children; that one of his children is disabled and that his youngest child has recently had an operation at the National Referral Hospital in Honiara. He said his wife and children now live at Alligator Creek near Henderson Airport and if granted bail he would reside with them at Alligator Creek. He further says that he has been in custody for over 17 months and that while a tentative date has been set for his trial in May 2012, there is no guarantee that the trial will actually proceed on that date.
   
5. John Salo supports the application and says that if the applicant is granted bail, he would reside with him and his family at Alligator Creek. Mr. Salo also undertook to ensure that the applicant attends trial if granted bail.
   
6. Ms Driu of counsel for the Crown submits that, in principle, she opposes the application. She says that the charge is serious and the risk of absconding is always present in cases where the charge is a serious one. In this case, the applicant is charged with murder which carries a maximum sentence of life imprisonment.
   
7. Ms Driu further submits that a trial date has already been set for May 2012 which is a date agreed to by both parties. That date is only about 6 months away.
   
8. Ms Driu further submits that the witnesses in the case are close relatives of the applicant, some of whom are the applicant's mother and sisters, and so there is a risk of interference with Crown witnesses. However, she acknowledges that this is an unfortunate case involved a family dispute and that the deceased was the blood brother of the accused. She also acknowledges that granting bail to persons accused of murder is not a new thing as shown in a number of previous cases where bail has been granted to persons who were charged with murder. She submits that if bail is granted, the applicant should be prohibited from contacting Crown witnesses.
   
9. Mr. Barlow of counsel for the applicant submits that there are special circumstances which qualify the applicant for bail in this case. He refers to the disabled condition of one of his children and the recent operation of his youngest child as special conditions.
   
10. Mr. Barlow also refers to the applicant having reached Form 4 at Talova High School and implying that the applicant is sufficient educated to appreciate his obligations if granted bail.
    
11. Finally, Mr. Barlow refers to the delay in bringing the applicant to trial in respect of the case against him. Mr. Barlow submits that the applicant has been in custody for more than 17 months and that there were cases in the past where the accuseds have been granted bail even when they have only spent less than a year in custody. He submits that, in this case, none of the risks (risk of flight, risk of re-offending and risk of interference with witnesses), which are the usual grounds for concern, is present. He submits that the applicant's mother and sisters, who are also among the witnesses for the Crown in this case, live at different villages quite far from Alligator Creek where the Applicant intends to reside if granted bail.
    

Principles applicable in granting bail

12. There is no dispute that murder is one of the most serious offences under the Penal Code. The other is treason. Both attract mandatory life sentences if guilt is established to the required standard.
    
13. However, it has been said in a number of cases before that the seriousness of a charge in itself is no reason to refuse bail[1].
    
14. It is clear that when considering an application for bail by a person accused of having committed a criminal offence, including the offence of murder and treason, the starting point must always be that the accused is prima facie entitled to bail and it is for the Crown to show that bail should not be granted[2]. To hold otherwise would be inconsistent with the presumed innocence of accused persons and their right to bail as guaranteed under the Constitution[3]. However, as has often been said, that does not mean that an accused person will be granted automatic bail in every case. Each case must depend on its own circumstances and in every case the burden is on the Crown to show that circumstances exist which justify refusal of bail[4].
    
15. It appears to have become a practice for the Crown to raise the usual risks (risk of flight, risk of re-offending and risk of interference with witnesses) as grounds for refusing bail and the argument has always been that the existence of these risks must be readily assumed and need not be proved as a fact due to the seriousness of the charges. There may be merit in that approach, but I think the time has come for the courts to look for real risks rather than assumed risks as grounds for depriving an accused person of his right to bail. Rather than assuming that every person accused of serious offences is likely to abscond or re-offend or interfere with witnesses, I think there must be some evidence of a real or actual risk that the accused person will abscond or interfere with witnesses or re-offend. To deny bail on the basis of assumptions runs counter to the presumption of innocence and the prima facie right to bail as provided for under sections 5 and 10 of the Constitution. For someone to be placed behind bars for a considerable length of time awaiting trial only to be found innocent after trial would be nothing less than grave injustice.
    

Bail granted

16. In the present case, I have also considered the fact that this is a case which involves close family members. The deceased is the blood brother of the applicant. I have noted that according to some witness statements, the deceased was the aggressor. I have also noted from the Magistrate Court transcript of the long form PI that some witnesses have changed their stories to become favourable to the applicant. I can understand their dilemma. They have already lost a brother or a son. Why should they lose another brother or son to a life behind bars for the rest of his life. This is not a situation where a stranger has caused trouble to a family. This is an incident which, as rightly conceded by Ms Driu, happened within a family. I am sure none of the risks mentioned above exists.
    
17. In the light if these facts and the delay in bringing this case to trial, I am satisfied that this is a case where bail should be granted.
    
18. Accordingly, I grant bail to the applicant on the following conditions:-
    

[1] The applicant is to reside with his brother, John Salo, at Alligator Creek, and must not go eastward beyond the Alligator Creek area without an order of the court.

[2] The applicant must not to communicate in any manner whatsoever, whether directly or indirectly, with any of the prosecution witnesses.

[3] The applicant must report to Henderson Police between 8am and 4pm each Monday and Friday of every week until trial.

[4] The applicant shall remain at his brother's residence at Alligator Creek, and not to leave such residence without the order of the court, between 6pm to 6am each and every day of the week.

[5] John Salo, the surety, must pay into court the sum of $2,000.00 as soon as possible as security for the attendance of the applicant at future hearings of the case.

[6] The applicant shall not be released until John Salo has paid the said sum of $2,000.00 into court.

THE COURT

______________________
James Apaniai
Puisne Judge

---

^[1] See for instance R v Kwaiga CRC No. 333 of 2004
^[2] See Kelesiwasi v R CRC No. 24 of 2004
^[3] See sections 5 and 10 of the Constitution.
^[4] Bolea v R CRC No. 256 of 2011 (Ruling 09/06/11)