Pati v Regina [2011] SBHC 155; HCSI-CRC 451 of 2011 (16 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

SIMON PATI

v

REGINA

Date of Hearing: 15th December 2011
Date of Judgment: 16th December 2011

Mr. Ghemu for the accused/Applicant.
Mr. Kausimae for the Crown/Respondent.

RULING ON BAIL APPLICATION

Apaniai, PJ:

1. Mr. Simon Pati ("applicant") has been charged with the murder of Charles Kaki at Manasu village, Malaita Province, on 4th January 2011.
   
2. He was arrested on the 5th January 2011 and has been in custody since then. He now applies for bail.
   
3. The applicant has filed three affidavits in support of his application. The first affidavit is by himself. The affidavit was filed on 8th November 2011. The crux of the applicant's affidavit is that he is 17 years old and, if granted bail, he would reside with his aunt, Freda Oku, at White River in Honiara.
   
4. The second affidavit is by Freda Oku who is the sister of the applicant's father. Mrs. Oku agrees to become surety for the applicant in the sum of $1,000.00. Mrs. Oku also undertook to take in the applicant to reside with her and her family at White River while awaiting trial and to ensure that the applicant attends trial.
   
5. The third affidavit is by Philip Timme of Waimasi Island, Malaita Province. Mr. Timme is the brother of the applicant's father and is currently the guardian of the applicant. After the death of the applicant's father, Mr. Timme had taken the applicant into his home as one of his own children. He has also undertaken to ensure that the applicant attends trial if granted bail. Mr. Timme has also described the various reconciliation ceremonies which he had arranged between the applicant's family and the deceased's family where compensation monies have been paid. The first ceremony was held on the 6th January 2011, which is 2 days after the incident, during which Mr. Timme paid 15 red shell monies and $10,000.00 to the deceased's relatives. This ceremony was held before the burial of the deceased's body. The second ceremony was held at Rove Police compound. This ceremony was witnessed by senior police officers. At this ceremony, Mr. Timme again paid 17 red shell monies and $1,000.00 to the deceased's relatives here in Honiara. The third ceremony was a reconciliation service held on 25th June 2011 at All Saints Parish in Honiara where both sides formally reconciled with each other in church.
   
6. In the light of these facts, the applicant submits that bail should be granted.
   
7. All these reconciliation ceremonies are important considerations to take into account when considering bail applications. They show a genuine effort on the part of Mr. Timme to restore peace between his family and those of the deceased. There is no doubt that customary compensation is the basic customary method of establishing peace and harmony between warring parties as in this case. Peace is normally guaranteed when compensation is paid. Where peace is established, it is my view, that the kind of risks which normally give rise for concerns in granting bail are minimised to a large extent.
   
8. However, despite these reconciliation ceremonies and compensation payments, the Crown still maintains that bail should be refused. The Crown's position is based mainly on the usual grounds of the risk of flight, the risk of interference with Crown witnesses and the risk of re-offending. The Crown argues that these risks are present because of the seriousness of the charge. The Crown further argues that the burden is on the applicant to prove the existence of special circumstances justifying the grant of bail.
   
9. The principles governing the granting of bail to persons accused of having committed murder are well established in this jurisdiction and these principles have been mentioned many times in the past[1]. I need not repeat them again in detail. Suffice to say that according to these principles, the seriousness of a charge is in itself not a reason for refusing bail[2] and that to justify refusal of bail, the prosecution must establish a strong case to show that the applicant is a flight risk or that there is a risk of re-offending if the applicant is released or that there is a risk that the applicant might interfere with Crown witnesses if released. The argument by the Crown that the burden is on the applicant to show exceptional circumstances justifying bail is, in my view, not in line with the constitutional provisions[3] regarding presumption of innocence and the prima facie right to bail where trial cannot be held within a reasonable time. In my view, the burden is always on the Crown to show a strong case against granting bail. In the absence of a strong case, the applicant should be granted bail but in doing so the court may impose conditions that will ensure the applicant's attendance at trial.
   
10. Applying these principles to the present case, and in the light of the genuine efforts being made by Mr. Timme in regards to reconciling the families, I am satisfied that this is a case where the applicant poses very minimal risk, if any, of absconding or of re-offending or even of interference with Crown witnesses.
    
11. Furthermore, I have taken into account the fact that the applicant is a very young person of only 17 years of age and the fact that the applicant has been in custody for almost 12 months since his arrest on the 5th January 2011 and that no date has yet been set for his trial. To allow a child of such tender age to mingle with other hardened offenders in the prison compound for long periods of time while awaiting trial is not in the best interest of the applicant.
    
12. I am satisfied that this is a case where bail can be granted but subject to such conditions as will ensure that the applicant attends trial in the future. I therefore grant bail to the applicant subject to the usual conditions, that is:-
    

[1] that the applicant is to reside at White River with his aunt, Mrs. Freda Oku, until trial and that the applicant must not go outside of the boundaries of Honiara without an order of the court.

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

[3] that the applicant must report to White River Police between 8am and 4pm each Monday, Wednesday and Friday every week.

[4] that the applicant must stay at Mrs. Freda Oku's residence at White River at night between 6pm to 6am each and every day of the week.

[5] that Mrs. Freda Oku, the surety, must pay into court the sum of $1,500.00 as security for the attendance of the applicant at future hearings of the case and that the applicant shall not be released until the $1,500.00 has been paid.

[6] that in the event of a failure to comply with any of these conditions, these conditions shall be vacated and all police officers are hereby authorised to re-arrest the applicant and take him into custody forthwith and keep him there until trial or further order of the court.

THE COURT

____________________
James Apaniai
Puisne Judge

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^[1] See R v Kwaiga CRC 334 of 2004; Kelesiwasi v R CRC 24 of 2004; Taisia v DPP 2001] SBHC 73.
^[2] See also Blackstone Criminal Practice 1992, at p. 1026.
^[3] See sections 5 and 10 of the Constitution.