Konle v Regina [2011] SBHC 175; HCSI CRC 320 of 2012 (6 December 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

ARON KONLE

-v-

REGINA

Date of Hearing: 5th December 2012
Date of Judgment: 6th December 2011

Mr. A. Aulanga for the Crown/Respondent.
Mr. H. Fugui for the accused/Applicant.

RULING ON BAIL APPLICATION

Introduction.

1. This is an application for bail by Aron Konle ("applicant") who has been charged with the murder of Uriel Wanemae Ado ("deceased") at Sun Valley, Lungga, on the 23rd May 2010.
   
2. The applicant was arrested on 25th July 2012 and has been in custody since then.
   
3. He now applies for bail pending trial.
   

The law on bail.

4. The starting point when considering bail applications is the Constitution. Section 5 (1) (f) of the Constitution authorizes the deprivation of the personal liberty of a person only upon reasonable suspicion that he has committed a criminal offence.
   
5. However, where a person is arrested or detained on suspicion that he has committed a criminal offence, the law requires that he must be brought before a court of law without delay or, if bringing him before a court will be delayed, then he must be released either unconditionally or upon reasonable conditions, including such conditions that will ensure his attendance at trial[1].
   
6. So the paramount consideration on an application for bail is whether or not the applicant will appear at his trial[2]. That means if there is reason to believe that he will not appear, then he is a flight risk and bail should not be granted. If there is no reason to believe that he will not appear then he should be given bail but with strict conditions to ensure that he does not abscond.
   
7. In deciding whether or not the applicant is a flight risk, the court will of course consider such factors as the nature of the accusation against the accused, the nature of the evidence supporting the accusation, the seriousness of the penalty that may result upon conviction and the availability of sureties.
   
8. There are of course other risks which the court is also entitled to consider other than the risk of flight. These include the risk of re-offending and the risk of influencing Crown witnesses. If there is evidence to suggest that these risks exist, bail should not be granted, or, if the court is minded to grant bail then strict bail conditions must be imposed.
   

Grounds for bail.

9. No specific reason has been put forward by the applicant as ground for the application apart from the fact of delay in his trial and his rights under the Constitution.
   
10. His argument in support of his application, as I understand, is based simply on the provision of the Constitution which declares that he is innocent until proved guilty and those which not only guarantee his right to a trial within a reasonable time but also guarantee his right to bail, with or without conditions, where he cannot be tried within a reasonable time.
    
11. He says he is prepared to abide by any condition imposed by the court. He also has the support of his brother, Elson Konle, who is a police officer as well as a police prosecutor.
    
12. He denies his involvement in the murder of the deceased. He also says that if granted bail he would reside with his brother, Elson Konle, who has undertaken to ensure that he attends his trial. Elson Konle currently resides at Panatina Valley in Honiara.
    

Objection to bail.

13. The Crown submits that the bail application should be refused for the following reasons.
    
14. First, there is a risk of flight. Counsel submits that murder is a serious offence and that in itself is a strong ground to cause the applicant to abscond.
    
15. Second, the personal safety of the applicant is important. Counsel submits that the applicant's safety cannot be guaranteed if he is released on bail. Counsel referred to the daily threats to the applicant's family after the incident while residing at Sun Valley and the continuous throwing of stones at the applicant's residence at Sun Valley while they were still there after the incident as evidence of the unsafe environment which the applicant might find himself in if released on bail.
    
16. Third, counsel submits that the applicant has no permanent address. Counsel has referred to the movements of the applicant after the incident to show that he has no permanent address.
    
17. Fourth, counsel has also referred to the movements of the applicant after the incident as a sign that there is a flight risk if bail is granted. Counsel says that another suspect, Mr. Bentley Konle, a brother of the applicant, is still at large and that police is yet to locate him.
    
18. Fifth, counsel has also submitted that the Crown's case against the applicant is strong. He referred to the statement by Clifford Inomae and the autopsy report by Dr. Maraka as showing a strong prima facie case against the applicant.
    

Analysis of the grounds of objection.

19. Risk of flight is certainly an important consideration in determining whether or not bail should be granted to a person accused of a crime especially murder and treason which are the most serious offences under the Penal Code. There is certainly a likelihood that the person accused might take flight in the light of the seriousness of the charge and its mandatory sentence of life imprisonment if convicted.
    
20. Unfortunately, I do not think such a risk exists in this case. After the incident, the applicant and his family continued to reside at Sun Valley in the midst of the deceased's relatives. He had had the chance to abscond but he did not and for the next 2 years after the incident he continued to travel between Honiara, Western Province and Malaita. His travels between Honiara, Western Province and Malaita had also given him an opportunity to abscond but he did not. The fact that Bentley Konle is still at large is no reason to suspect that the applicant will abscond. There is no evidence as to the reason why Bentley has not yet been arrested. It is clear from Reginald Misiosi's sworn statement that the assertion that Bentley is evading arrest is only a presumption.
    
21. In regards to the personal safety of the applicant, I believe the applicant would be safe as long as he guards himself properly. The deceased's relatives live at Sun Valley. They have been living there before the death of the deceased. After the death of the deceased, the applicant continued to live at Sun Valley for the next 4 months. The only disturbances he encountered were threats and throwing of stones at his house. Otherwise, he had not encountered any physical violence. Now he is in custody and, if granted bail, he would reside at Panatina Valley. There is no evidence that he would be at risk if he resides at Panatina Valley.
    
22. Counsel has referred to the statement by Fred Sikini dated 3rd December 2012 in which Mr. Sikini had indicated the actions which his family intends to take against the applicant if released on bail. I note that the purpose of the statement is to persuade the court not to release the applicant on bail. It was made on the 3rd December 2012, 12 days after this application was filed. I consider it as an attempt to unduly influence the court's decision. Such attempts must be condemned.
    
23. I do however commend Mr. Sikini for his role in ensuring peace between the two groups and I would urge him to continue with the good work. But I must warn anyone intending to carry out the threats referred to by Mr. Sikini in his statement that such actions would not be in his best interest.
    
24. Counsel for the Crown further submits that the movement of the applicant after the incident shows that the accused has no permanent address, hence, it would be difficult to locate him if granted bail. This submission fails to appreciate that the applicant will reside with his brother, Elson Konle, at Panatina Valley if granted bail. Elson's residence will become his permanent address then if bail is granted.
    
25. Finally, counsel submits that the Crown has a strong case against the applicant and therefore bail should not be granted. Counsel refers to the statements by 2 of the Crown witnesses, namely, Clifford Inomae and Dr. Maraka.
    
26. The strength of the Crown case is certainly a matter that may be taken into account in deciding bail applications. However, the primary consideration in relation to a bail application is not the guilt of the applicant but the risks involved if bail is granted. In other words, in a bail application, the court is not required to determine the guilt of the applicant but to assess the risks involved if bail is granted. The strength or weakness of the case against the accused should not be a serious consideration when deciding whether or not to grant bail.
    
27. Furthermore, whether a case is strong or not depends very much on the evidence to be produced in court so that while a statement given during investigations may be damning to the accused person, experience has shown that witnesses do sometimes deviate from what they said in such statements when actually giving oral evidence in court. It is therefore not advisable to place too much weight on whether or not the Crown has a strong case.
    

Bail granted.

28. In the light of the assessment I have made in this case as stated in the preceding paragraphs and also taking into account the likely delay in prosecuting the case, I am satisfied that this is a case where bail can be granted.
    
29. Accordingly, I grant bail to the applicant on the following conditions:-
    

[1] The applicant must reside with Elson Konle at Panatina Valley, Honiara, until trial or further order of the court.

[2] The applicant must not go beyond the boundaries of Honiara without an order of the court.

[3] The applicant must not go beyond the boundaries of Elson Konle's residential compound at Panatina Valley between 6pm each day and 6am the next day without an order of the court.

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

[5] The applicant must report to Kukum Police between 8am and 4pm each Monday, Wednesday and Friday of every week.

[6] Elson Konle, the surety, must pay into court the sum of $2,000.00 as security for the attendance of the applicant at future hearings of the case.

[7] The applicant must not to be released until Elson Konle pays into court the $2,000.00.

[8] In the event of a failure to comply with any of these conditions, these conditions shall be vacated and all police officers are hereby authorized 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

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^[1] Section 5(3)(b) SI Constitution.
^[2] Taisia v DPP [2001] SBHC 73 (9 October 2001); see also Kwaiga v R CRC No. 333 of 2004.