IN THE HIGH COURT OF SOLOMON ISLANDS.
(FAUKONA J).

CRIMINAL CASE NO: 20 AND 21 OF 2011.

NELSON RIMANU & KONA BAEGA

V

REGINA.

Date of Hearing: 14th February, 2011.
Date of Ruling: 24th February, 2011.

For Applicant 1: Mr Cavanagh and Mr Kalu.
For Applicant 2: Mr Valenitabua.
For the Crown: Mr Kelesi.

RULING ON BAIL APPLICATION.

Faukona J: Both Applicants were arrested on 20th June 2010 and were placed on remand at Auki Correctional Centre for the murder of the deceased Justice Belo. Later on 7th August 2010 both were transferred to Solomon Islands Correctional Centre at Rove, Honiara. Both have been on remand since then. Both applicants are aged 17 and 16 respectively. They now apply for bail.

	The facts
	
2.	The facts are that on 10th June 2010, there was a marriage celebration and a dance at Niu Rove village, North East Malaita. Alcohol was sold and consumed during the occasion. There was a generator power which provided lighting for the occasion. At about 3:00 or 4:00 am a fight broke out. The deceased and Walter stood up and attempted to defuse the situation. At that moment applicant 2 threw a stone at the deceased and landed on his forehead. The deceased fell to the ground and was unconscious. Whilst on the ground applicant 1 struck him with a nan-chakuchain which landed on his chest and kick him on the back. After the incident the deceased was taken to Gwaunatolo clinic by his wife. On 13th June 2010 the deceased was pronounced dead at Gwaunatolo clinic. The matter was reported to Police on 14th June 2010 and both applicants surrendered to Police on 19th June 2010.
	
	The Law
	
3.

	The starting point in any bail application is the presumption of innocence enshrine in the constitution section 10(2)(a) and presumption of liberty under section 5. Demise on the two fundamental principles is the right of an accused to bail. Section 5(3) constitution is a general provision that vests power on the courts to release a person detained unconditionally or upon reasonable conditions. More specifically is section 106(3) of Criminal Procedure Code which limits the grant of bail in murder cases by the High Court.
	
4.	The importance of presumption of innocence is the fact that an unconvicted detainee cannot be equally treated as a convicted prisoner, whose detention may be questioned by way of an appeal. The principle and the relevant provisions of the constitution and CPC operates to accord an accused kept in custody that his constitutional rights to liberty be not infringed unnecessarily.
	
5.	Further, section 106(3) of CPC vested on the High Court discretionary powers to exercise in determining whether to grant or refuse bail. The case of Kelesiwasi v Regina() reinforces that granting of bail is not automatic, it may be refused in certain situation. In all situations the prosecution must show on sufficient and proper information, that the circumstances of the offence warrant the accused remand in custody.
	
6.	His Lordship Palmer CJ continue on page 2 by saying that in considering whether to grant or refuse bail, the court engages itself in carefully balancing exercise. The function involves risk assessment after hearing both sides which determine at the end of the day which way the discretion of the court will fall(). By authority of Kelesiwasi's case the court has to consider other relevant consideration as, possibility of absconding, interference with the course of justice and the likelihood of re-offending.
	
7.	The test to be applied is expounded in the case of Taisia v DPP(), where His Lordship Kabui J stated,
	
		"That the test to be applied is whether or not it is probable that the accused will appear in Court on the trial date".
	
	To determine whether an accused person will appear on the trial date is a question of fact. His Lordship alluded by extending further considerations which may assist the Court in assessing the probability of attending. Those considerations are, the nature of allegation, the nature of evidence supporting the charge, the seriousness of the penalty that may result upon conviction and the availability of the sureties.
	
	The issue of exceptional circumstances.
	
8.	This principle gradually gain momentum in this Court, and often refer to by Crown Counsels as one of the grounds to oppose bail application. It has not been clear what the definition of the term is. However, as I could able to glean; it is used as an attempt to shift the onus of proof to the applicant. Historically the principle sprout from the case of Regina v King Ming Khoo() where His Lordship Ward CJ stated in page 2 paragraph 4, that the effect of Section 106 CPC is that bail in murder cases will only be granted in exceptional circumstances.
	
9.	What is exceptional circumstance then Mr Cavanagh in his submission paper refer to the New South Wales Attorney General Second Meeting speech introducing amendments in respect of exceptional circumstances said (an extract cited in Regina v Hantis (2004) NSW SC 153,
	
		"Exceptional circumstances will be left to the court to decide on an individual case by case basis. However, as general guide it might include cases including a battered wife, or a strong defence case or a week prosecution case. It might also include a case in which the defendant is in urgent need of medical attention or who has an intellectual disability".
	
10.	It would seem that Khoo's case places a higher level of gravity as the only ground than usual, before a bail can be granted. Further to that it attempted to limit the wide discretionary power of the Courts to exercise in considering circumstances surrounding each individual case before deciding whether to grant bail or not.
	
11.	However important is the general comment made in Regina v Hantis above which states, what is exceptional be left to the court to decide in each individual case.
	
12.	The emerging principle which attract invariable views need to be put to rest. In Sisifiu v Regina() His Lordship Palmer CJ stated at page 2, paragraph 2 and said;
	
		"I would agree with the learned Counsel's submission that the exceptional circumstances referred to in the case authorities pertain to the crime alleged and the circumstances of the accused. There must be necessary include the usual considerations the Court is required to consider on whether to grant bail or not. Regrettably it does not include the personal circumstances, including hardships that his family may be facing as a result of him being in custody".
	
13.	Again in Kwaiga v Regina(), His Lordship Palmer CJ stated on page 2, paragraph 2;
	
		"The burden of proof however still lies with the Prosecution to show on the balance of probabilities that an accused should not be granted bail. Notwithstanding what was said by this Court in Regina v Kong Ming Khoo() and Regina v Dickson Maeni() that bail will only be granted in exceptional circumstances or rarely given, the Court is obliged to carefully consider each application for bail or its merit"
	
14.	What the authority in those cases admonish is that there is no set standard, unusual or extra ordinary be proved before an application for bail be granted. So clear so that each case be determine on its own circumstances. It may be different in circumstances where a fresh application is made, or where an application for bail is made after conviction awaiting appeal.
	
	The nature of allegations
	
15.	The Crown alleges that applicant 1 murdered Justice Belo at New Rove village on 10th June 2010, at which time he was involved in a fight by striking the deceased with a nun-chaku chain on his chest and kicked him on his back. The Crown further alleges that applicant 2 murdered Justice Belo on 10th June 2010, at New Rove village, at which time he threw a stone which hit the deceased on his head. The deceased later died of subdural haemorrhage caused by a blunt force to his head.
	
16.	The Counsels acknowledge that the allegations against the applicants are serious. Of course, it may well be so, that murder is a serious offence with a mandatory life imprisonment. However in Regina v Maeni() bail application in murder cases are rarely given because of the severity of the punishment. But that does not mean that bail will not be considered or given. That affirms the discretionary power of the court in considering whether to grant bail or not.
	
17.	The Counsel for applicant 2 submits that Court cannot and should not refuse bail on the basis of the seriousness of the charge alone. He refers to Blackstones Criminal Practice, with no citation, and states;
	
		"The gravity of the charge is not an automatic reason for refusing bail (see eg. Silcott (1987) The Times 20 march (1987). However, the relevance of the offence alleged being serious is that the accused will know that, if convicted, he is likely to receive a severe sentence and will therefore be tempted to abscond rather than run the risk of such sentence"
	
18.	The notion as expressed in the above case has been the law in this country; that the severity of offending has a direct influence on the primary risks. In Taisia v DPP() His lordship Kabui J stated that bail will be refused in murder cases because the reason is obvious. The accused would not wish to face trial and so may abscond, or may interfere with Crown witnesses (addition is mine). Whatever argument may advance, the fact stand out to be, that the court has absolute discretionary power to exercise in considering whether to grant bail or not.
	
19.	Nature of evidence supporting the allegations.
	
	The Counsel for applicant 2 submits that the strength of the Crown case is one factor to be considered. It is not the only consideration nor is the most important. Whilst I agree with the Counsel, applicant 2's case may contemplate some responsibility in particular when he stated that he may have thrown the stone but without intention. The strength of applicant 1's case depend on two eye witnesses, whilst applicant 2's case rely on one. Generally the case against both are fairly strong.
	
	Risk of flight and risk of re-offending.
	
20.	In normal circumstances the Crown places more emphasis on the primary risks, as ground for opposing bail. In this case the Crown Counsel admits in his written submissions that there is no evidence on information offer to support the two grounds. However he relies on the wisdom of the Court to balance and weigh against the Crown evidence before determining whether to grant bail or not. That gives this court no difficulty in accepting both Counsels for applicants submissions that both applicants has no history of absconding bail, or uncooperative with Police by attempting to avoid Police. Given the prior clean history, there is no basis for the Crown to believe that reoffending or absconding is likely if bail is granted. 
	
	Interfering with course of justice
	
21.	The Crown submits because some of the Crown witnesses are related to the applicants there is substantial ground to believing that both applicants once granted bail will interfere with Crown witnesses. Counsels for both applicants submit that if they are granted bail they will reside with their brother and cousin Mr Sam Baega who is working in the Education Office at Auki, which is far from Niu Rove and neighbouring villages. Beside a non contact condition attached to bail can alleviate this risk. Whilst I agree with both Counsels, unless otherwise be shown to the contrary, both applicants in my view are not capable of interfering with witnesses; applicant 1 is 17 years old and applicant 2 is 16 years old, with past clean criminal records.
	
	Delay.
	
22.	Counsel for applicants submits that there is likely to be a delay for one year or eighteen months before applicant's cases go to trial. Meanwhile they have already spent about nine months in custody. The question I pose to ask, is nine months undue delay that may infringe Section 5(3) constitution which uphold a trial within a reasonable time if not shall be released on bail. In other words is nine months an unreasonable delay which deprive the benefit of the applicants from the presumption of innocence. In my view nine months delay is still reasonable time considering the back log of cases pending trial in the High Court. In this case the Crown Counsel confirmed that information has been filed on 14th October 2010, and that should kick start the process that will lead on to fixing of a trial date.
	
	Juvenile
	
23.	I noted both applicants are young persons and ought to be treated under section 7 of the Juvenile offenders Act. Counsel for 1st applicant refer to the case of Kelly v Regina() which reinforces the fact that young offenders are treated differently from and more sensitively than adult offenders would be in similar circumstances. The Courts have been well versed with the circumstances surrounding young persons who involve in criminal activities and how to deal with their cases, accord a different treatment from adults, in particular from associating with any other person not being a child or young person..
	
	Availability of Surety.
	
24.	Noted from the submissions that Mr Sam Baega will act as Surety for both applicants. Mr Baega is a brother of applicant 2 and a cousin to applicant1. Mr Baega has a permanent employment with the Education Authority in Malaita Province, and has offered $1,000.00 each for surety.
	
25.	Quite important is the case of Taisia v DPP() which His Lordship Kabui J emphasized on page 2 paragraph 2, that availability of surety is one of the factors to be considered.
	
26.	His Lordship continued to elaborate on the importance of a surety on page 3 paragraph 1. 
	
27.	On the same token Mwanesalua J stated on page 2 paragraph 5 in the case of Regina v Ben Jeri(),
	
		"Andrew Maria is willing to be a surety for the accused. But she has not stated the actual amount of money she would put up for the surety. It is therefore not possible at this time to determine whether she has sufficient financial resources to answer for any sum in which she is to be bound. I say this because there is an obligation on a surety to be fully satisfied that she can meet the liability which will arise if the accused does not surrender to bail"
	
28.	In this case the surer Mr Sam Baega had sworn two affidavits offering $1,000.00 bail for each applicant. However he has failed to appear in Court to affirm his obligation. Simply swearing an affidavit is not enough to convince me that he would stand by his words. His willingness to stand as surety must be demonstrated in his physical appearance in court. This is significantly important to guarantee the applicants will comply with bail conditions and ensure their safety as young persons, and also ensure both are not influenced by others. It has to be noted that Auki is a small town unlike Honiara. It is the centre of business as banking, shopping and administration of Malaita Province. Those connected by the road communication access to Auki almost every day, including relatives of both applicants and deceased, even including some Crown witnesses.
	
29.	I am of the view that Auki town is not favourable to accommodate safety of the two young person to reside awaiting trial. Both cannot confine and reside in the house of the surer every day. They have the liberty to get around. I have assessed the risk and I have reasonable suspicion that safety is not guaranteed and influence is imminent. I am urged to treat this case indifferently and I do so with cautiousness. However, should the surer present in Court he should enlighten the Court of his strategies and how best he could manage the two young kids whilst away at work.
	
30.	There is suggestion that applicant 2 will return to school. I agree, but classes occupy half of the day, the rest is open. Noted from the sworn affidavits of applicant 1 and Mr Baega the surer, that if applicant 1 is granted bail he would go home to work in his cocoa plantation. That in fact is contrary to the submissions, unless withdrawn, which is doubtful at this stage, will render it difficult for Mr Baega to monitor and administer bail effectively. Applicant 1's home is quite far from Auki.
	
31.	Having assessed the risks and considering all the relevant factors submitted including the seriousness of the case; the mandatory life imprisonment attach to it, the strength of the Crown case which is fairly strong, the age of the applicants which require different treatment and the availability of surety. In all, although the applicants are good candidate for bail, I would refuse for the meantime. Bail is therefore refused for both applicants. 

Order accordingly.

The Court.