Regina v Chivili [2011] SBHC 24; HCSI-CRC 137 of 2011 (20 April 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

v

CHARLES KEKU CHIVILI

Date of Hearing: 15 April 2011
Date of Judgment: 20 April 2011

Ms. M. Bird for the accused/Applicant.
Mrs. L. Fineanganofo for the Crown/Respondent.

RULING ON BAIL APPLICATION

Apaniai, PJ:

1. The applicant, Charles Keku Chivili, applies for bail pending trial of the offences with which he was charged. The charges against him are 7 counts of rape, 2 counts of indecent assault and 1 count of attempted rape.
   
2. It is not disputed that the victim in all these charges, Ms. Comfort Baekalia, is the applicant's own biological daughter. The victim's mother is Irene Baekalia ("Irene"). The victim was born out of wedlock although the applicant claims in his record of interview that he had two wives and that Irene was one of them.
   
3. The first charge against the applicant alleges that he attempted to rape the victim at Kakabona Beach sometime in 2007. It is alleged that the applicant picked the victim at her mother's residence at White River and drove her to Bonegi Beach where he threatened to kill her if she resisted him. He tried to insert his fingers into the victim's vagina and then also tried to insert his penis into the victim's vagina but did not succeed. It is alleged the applicant desisted only due to the pain he was causing to the victim.
   
4. The second charge is indecent assault and arose out of that same transaction which gave rise to the first charge. It is alleged that the applicant, during the course of his attempt to rape the victim, also indecently assaulted the victim by touching her breast and her vagina and by licking her vagina.
   
5. The third charge alleged that the applicant raped the victim at Kakabona Beach sometime between 1st January and 30th April 2008. It is alleged that the applicant picked the victim at her mother's residence at White River and drove her to Kakabona Beach and then forcefully had sex with her at the back seat of his vehicle. This time round, the applicant succeeded in penetrating the victim. The victim did not resist because she feared the applicant.
   
6. The fourth charge alleged that the applicant again indecently assaulted the victim on an unknown date between 1st January and 30th April 2008 at Ata's car park area at White River by touching her vagina.
   
7. The fifth charge alleged that the applicant again raped the victim at Ata's car park area, White River, in May 2008.
   
8. The sixth charge alleged that the applicant raped the victim sometime in June 2008 at the applicant's residence at Kakabona.
   
9. The seventh charge alleged that the applicant again raped the victim at Ata's car park area, White River, sometime in November 2008.
   
10. The eighth charge alleged that the applicant raped the victim somewhere at Kakabona in March 2010 after making the victim intoxicated.
    
11. The ninth charge alleged that the applicant raped the victim in June 2010 in the victim's room at White River and the tenth charge alleged that the applicant raped the victim on 29th December 2010 again at Ata's car park area.
    
12. It is alleged that the victim was born on 5th February 1997. If so, it means that the victim was 10 years old at the time of the first offence and was about 11 at the time of the second to the seventh offence. She was about 13 at the time of the eighth, ninth and tenth offence. In other words, she was still a very young child at the time of the alleged offences.
    
13. The applicant was arrested on the 9th March 2011 and charged with the above offences and placed in custody. He has been in custody since then. He now applies for bail.
    
14. It appears that a preliminary inquiry ("PI") was held on 1st April 2011. Copies of the Charge documents are on file as well as copies of the List of witnesses and List of exhibits. However, no information has yet been filed pursuant to section 233 of the CPC.
    
15. In support of his application for bail, the applicant has filed a sworn statement in which he had set out the following grounds as the basis for the application:-
    

(1) a PI was held on 1st April 2011 and he is now awaiting trial. No information has yet been filed therefore, while the case is said to have been listed for trial on the 6th May 2011, it is not certain that trial will actually take place on that date. He says that as the actual trial date is uncertain, he should be released on bail while waiting for his trial;

(2) he is the manager and owner of the Kovuare night club;

(3) he is the bread winner in his family and that in his absence, his wife is struggling to make ends meet for the family's survival;

(4) his children are at school and they depend on him for school fees and other school expenses;

(5) he is one of the trustees of the Konggulai water source and his presence at negotiations currently being held between the trustees and SIWA and JICA is important;

(6) there is a civil claim (CC. No. 463 of 2009) pending against the trustees of the Konggulai water source and it is important that the applicant be released to attend to that case along with the other defendants.

16. The applicant has also tendered an affidavit by Damaso Roko, one of the trustees of the Konggulai water source, confirming the need for the applicant to attend the negotiations as well as the civil claim against the trustees. Mr. Roko has also confirmed his willingness to act as surety for the applicant.
    
17. Furthermore, the applicant has also tendered an affidavit by his wife, Susan Neti, who stated that she and the applicant have 4 children, three of who are still at school and needed the presence of their father. She also said that she is willing to act as surety for the applicant if released on bail to ensure that he complies with the conditions of bail. Mrs. Neti comes from Tina village, Malango district, Guadalcanal Province, and she said that, if bail is granted, she would ensure that the applicant resides with her at her village to avoid contact with crown witnesses including the victim. Finally, Mrs. Neti says that she is willing to act as surety for the applicant and has pledged $5,000.00 should the applicant breach his bail conditions.
    
18. Another ground which has been raised in support of the bail application is the fact that the applicant is a diabetic and needs special diet which, it is claimed, could not be provided in prison.
    
19. I have considered all the grounds advanced by, and or on behalf of, the applicant in support of the application. At this juncture, it is proper to say that the principles governing the granting of bail in this jurisdiction are clear. That is, except in the case of murder and treason, an accused person is prima facie entitled to bail unless it can be shown that proper reasons exist which would justify the continued incarceration of the accused[1]. The basis of this principle is that a person is presumed innocent until proved guilty. The law is also clear that the burden is on the prosecution to show the existence of proper reasons and to convince the court that, because of those reasons, the accused should not be released on bail. The prosecution can do that by showing that the applicant is a flight risk or that he is a risk to the administration of justice or that there is a risk of him or her re-offending if released on bail.
    
20. The presence of these risks are assessed by considering the nature of the offence or offences charged, the personal circumstances of the accused, the knowledge by the accused that if convicted he would very likely face a long sentence and therefore it is better to "run" rather than face the consequences, the past criminal record of the accused, the conduct of the accused, etc. In other words, the court will consider the circumstances of each case and then do a balancing exercise between the competing public interest in seeing, on the one hand, that the freedom and liberty of innocent persons are not unduly infringed and, on the other hand, the public interest in seeing that criminals are brought to account for their conduct. After considering these matters, it is in the discretion of the court to decide whether or not bail should be granted.
    
21. As for the present case, the applicant is charged with ten criminal offences – 7 of them for rape, 1 for attempted rape and 2 for indecent assault. The offences are alleged to have been committed by the applicant on his own daughter. These are very serious offences as reflected by the maximum penalties prescribed for each of the offences. Rape carries a maximum sentence of life imprisonment[2], attempted rape, a maximum term of 7 years[3] and indecent assault a maximum of 5 years[4]. I remind myself that the seriousness of these offences does not automatically disqualify the applicant for bail, nevertheless, the seriousness of the offences is a relevant consideration when determining whether or not there is a risk of flight.
    
22. I have considered the fact that the applicant has a business to run and a family to provide for. He also has important roles in his own community. I am satisfied these would go towards minimising the risk of flight, but I am not satisfied that they are sufficient to completely erase the risk altogether. I took note of the fact that some form of reconciliation has taken place between the applicant and the victim's mother, Irene. It was Irene who reported the incidents to the police. She is one of the prosecution witnesses. Based on Irene's report, charges were laid against the applicant. So, in order for the charges to be withdrawn, reconciliation must be held with Irene. Unfortunately for the applicant, Irene was adamant that the cases should proceed despite the reconciliation. This means that she remains a prosecution witness.
    
23. This brings me to the issue of the risk to the administration of justice. Interference with crown witnesses falls within this risk. I have already referred to the applicant's reconciliation with Irene. I have read the additional statement made to the police by Irene in regards to the reconciliation attempt by the applicant. I am satisfied Irene has been under great pressure by the applicant to write a letter to withdraw the charges made against him. The applicant had used his wife (Susan) and his driver (Cruz) as well as other people to try and persuade Irene to withdraw the charges. These events took place on the 9th March 2011, the same day the applicant was arrested. On the 10th March 2011, Irene said she wrote the letter withdrawing the charges and that she was under pressure to do so. On the morning of the 10th March 2011, Susan rang Irene and asked whether she had written the letter. Irene said she did and Susan and the driver then picked up the letter from Irene at Tamlan school and delivered it to the prosecution. It appears to me that these are desperate attempts by the applicant to interfere with the administration of justice in relation to charges which are of a very serious nature. I am not satisfied that the applicant will desist with his attempts if on bail irrespective of any orders which may be made stopping him from interfering with witnesses, etc. These are very serious offences and it is in the public interest that the charges be tried. Exerting pressure on crown witnesses to withdraw the charges runs counter to the public interest. I am satisfied the risk of the applicant and his agents interfering with crown witnesses still remain and that risk will remain high if the applicant is granted bail.
    
24. I have also considered other matters raised on behalf of the applicant during submissions by counsel for the applicant. In particular, I have considered the fact that no information has yet been filed against the applicant and the likelihood that it might take some time before information is laid. However, I am told by Mrs. Fineangofo of counsel for the prosecution that the next mention date is 6th May 2011 and that the information will be filed before that date. From the time of arrest (9th March 2011) until 5th May 2011 is just under 2 months. I do not think that would be unreasonable delay justifying release on bail. I take note of Practice Direction N1-11 dated 7th February 2011 issued by the Chief Justice which suggested that a period of 6 months delay would justify a release on bail. The extent of the delay in the present case has not yet reached that level.
    
25. I have also considered the applicant's diabetic condition. I am satisfied his diabetic condition can be managed while in custody. I have taken note of the advices from Robert Tome of the Rove Central Correctional Centre ("RCCC") to the magistrate court dated 21/03/11 and 22/03/11 respectively stating that the RCCC is in a position to manage diabetic prisoners such as the applicant.
    
26. I have also considered the willingness of the applicant's wife, Susan Neti, and his co-trustee, Damaso Roko, to act as sureties for the applicant. However, in his affidavit, the applicant said that his wife, Mrs. Neti, is not employed and is struggling to make ends meet. As for Mrs. Neti, while she says in her affidavit that she is willing to act as surety for the applicant and has further said in her letter to the Registrar dated 13th April 2011 that she is willing to pay $5,000.00 in the event that the applicant fails to comply with bail conditions, she did not say how she would get the money or where the funds would come from. The same can be said about the undertaking by Mr. Roko to act as surety for the applicant. I do not think I can count on such promises. Sureties must be independent persons who can satisfy the court that they are in a position to command the respect of the person in custody.
    
27. For the above reasons, the application for bail by the applicant is refused. However, to ensure speedy progress of this case, I make the following directions:
    

(1) That the prosecution file and serve the necessary information by Monday 2nd May 2011.

(2) That the matter is listed for 9.30am on Friday 6th May 2011 for arraignment and/or further directions.

THE COURT

James Apaniai
Puisne Judge

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^[1] Kelesi v R CRC 24 of 2004
^[2] Section 137, Penal Code
^[3] Section 138, Penal Code
^[4] Section 141 (1), Penal Code