Regina v Chivili [2011] SBHC 53; HCSI-CRC 137 of 2011 (12 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

CHARLES KEKU CHIVILI

Date of Hearing: 8 July 2011
Date of Judgment: 12 July 2011

Mr. Tigulu for the accused/Applicant
Ms. Fineanganofo for the Crown/Respondent.

RULING ON SECOND BAIL APPLICATION

Apaniai, PJ:

1. The applicant, Charles Keku Chivili, applies for bail pending trial of the offences against him. This is his second application for bail before this court. The first application ("1st application") was heard by me on 15th April 2011 but was rejected in my ruling dated 20th April 2011 ("1st Ruling").

2. The 1st application was rejected for two reasons. The first is because of the fear of interference with crown witnesses. There was, at that time, evidence that the applicant and his associates were exerting undue pressure on Ms. Irene Baekalia, one of the principal crown witnesses, to withdraw the complaint against the applicant. The second is because of the lack of confidence I had in the proposed sureties as to their capability to command the respect of the applicant. As I said in my ruling, 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.

3. The allegations against the applicant were sufficiently outlined in my 1st Ruling. I will not repeat them here. They are very serious allegations and they remain so until now. However, the seriousness of the alleged offence is not an automatic reason to refuse an application for bail. It is only one of the factors that the court is entitled to take into account when considering the question whether or not to grant bail.

4. As I said above, this is the applicant's second bail application. In that regard, I wish to make it clear that where a bail application has previously been made by an accused person and rejected, the accused person cannot make another bail application based on the same, or substantially the same, grounds upon which the previous application was based. A further application would be justified only where it can be shown that there is a material change in the circumstances of the accused or of the case since the hearing of the previous application, or, that new material, which was not before the court at the previous hearing, has emerged which would justify another attempt at an application for bail. This appears to be the principle laid down in Bartlett v R where His Lordship, Kabui, J said (at p.2):

"The rule of practice is that I cannot re-open the findings in the three previous bail applications unless by way of an appeal which in this jurisdiction is not one that is available to an accused whose bail application has been refused by the High Court (see R v Bartlett, Appeal No. 20 of 2004). There are however two exceptions to this rule of practice. First is that a subsequent bail application may raise matters of fact that had been omitted in a previous bail application. Second is where new facts have caused changed circumstances to occur so that a fresh bail application is justified. (See R v Nottingham Justices ex parte Davies [1981] QB 38)".

5. Proof of a material change in circumstances, or proof of new facts, only enables the court to hear the fresh application. The applicant must still satisfy the court that the changed circumstances or the new facts justify the granting of bail.

6. The question in this application, therefore, is whether there has been a material change in the circumstances of the accused or of the case since the hearing of the 1st application, and/or whether new material, which was not before the court at the hearing of the 1st application, has emerged so as to justify this second attempt.

7. Counsel for the applicant says that the present application qualifies on both counts. He says that there are changes in the circumstances of this case and that new facts have emerged since the hearing on 15th April 2011 which, not only justify this fresh application, but also justify the granting of bail to the applicant. He refers to certain the restraining orders by the magistrate court dated 13th January 2011, which restrained the applicant from threatening Comfort Baekalia ("Victim") or coming within 100 meters from YWCA where the Victim lives or from speaking to the Victim, as new material which was not before the court at the hearing of the previous bail application. He also refers to change of position by the complainant, Irene Baekalia ("Irene"), and the Victim in regards to the pursuit of the complaint against the applicant as a material change in the circumstances of the case. Finally, he submits that since the hearing of the previous bail application, the diabetic condition of the applicant has deteriorated to the extent that the applicant's life would be at risk if he remains in custody.

8. Counsel for the applicant has also tendered a sworn statement by Fr. Abba, a catholic priest at Tanagai, who has indicated willingness to act as surety for the applicant to ensure that the applicant appears in court on the trial date. Counsel says that this also amounts to a material change in circumstances of this case which would not only qualify this application for hearing but would also justify granting of bail.

9. Counsel for the Crown, in response, submits that the issues raised in the present application have already been dealt with at the previous bail application and that there is nothing new in this application to justify further attempt at bail. Counsel further submits that despite the restraining orders by the magistrate court, the applicant had been associating with the Victim in breach of those orders and therefore those orders should not be regarded as new material justifying fresh bail application. Counsel also submits that in regards to the issue of the complainant's position regarding the pursuit of the complaint in court, the fact is that the case is still before the court and the change in position by the complainant and the victim do not justify a further bail application. As regards the health condition of the applicant, counsel says that that was an issue which had also been dealt with at the hearing of the previous bail application and therefore they do not amount to new matters or changed circumstances justifying bail.

10. I have already referred to the reasons for the rejection of the 1st bail application. I will mention those reasons again. The first is because of the fear of interference with crown witnesses and the second is because of the lack of confidence I had that the proposed sureties were in a position to command the respect of the applicant. The decision in relation to the 1st application was based on the material which was before the court at that time which convinced the court that there is a risk of interference with witnesses and that the proposed sureties are not acceptable.

11. I accept that the existence of the magistrate court order was a fact that was not before the court at the last bail application and justifies the hearing of this application. However, I am not convinced that the court would have granted the 1st application had it known of the existence of that order. In other words, knowledge by the court of the existence of the magistrate court order would have made no difference to the decision by the court to refuse the 1st application. In fact, that order only adds force to this court's order in ensuring that the applicant does not communicate with the complainant and the victim. The first ground advanced by the applicant therefore fails.

12. The second ground advanced by counsel for the applicant is that the change in attitude by the principal crown witnesses (that is, Irene and the Victim) in regards to the pursuit of the complaint is a material change in the circumstances of the case which justifies re-visiting the issue of bail.

13. I think there is merit in that ground. Irene and the Victim have indicated that they no longer wish to pursue the complaint in court. They are the main witnesses for the crown. Without them, the crown case has little chance of success. The evidence before the court at the hearing of the 1st application was that these witnesses had wanted the case to proceed but that they were under great pressure from the applicant and his relatives to withdraw the case against their wish. That was one of the main reasons for the refusal of the 1st application. This situation has now changed. That means the strength of the prosecution case has reduced and the chances of the applicant being convicted of the offences have reduced to some extent. The strength or otherwise of the case against a person accused of a criminal offence is an important factor to consider when deciding whether or not to grant bail. I accept that the change of heart by the complainant and the Victim in this case have given rise to a material change in the circumstances of this case justifying both the hearing of this application and granting of bail.

14. Counsel for the applicant has also filed a sworn statement by Fr. Aba, a catholic priest, who has agreed to act as surety for the applicant. I accept that this is also a material change in the circumstances of the case justifying both the hearing of this application and granting of bail.

15. For the above reasons, the application for bail by the applicant is granted subject to the following conditions:-

[1] The applicant must not contact or to communicate in any manner whatsoever, whether directly or indirectly with, any of the prosecution witnesses, including Irene Baekalia and Comfort Baekalia.

[2] The applicant must report to White River Police Post between 8am and 4pm each Monday and Friday every week.

[3] The surety, Fr. Jacob Aba, must pay into court the sum of $500.00 as soon as possible. The applicant will be released only after payment into court of the said $500.00.

16. Since I have granted this application, I have decided that it is not necessary for me to consider the final ground advanced in support of granting this application, that is, the applicant's seemingly deteriorating diabetic condition. Despite that, I must express concern about the material presented in this application for and against granting bail on this ground.

17. First, the materials before the court in connection with this application (and, I might add, in connection with the previous application) appear to show a lack of working together on the part of the officers within the Rove Central Correctional Centre ("RCCC") in relation to the issue of granting bail to those held in custody. They also show a lack of proper understanding on the part of some of those officers in regards to the question of who is the official spokesman for the RCCC when it comes to expressing the official position of the RCCC on such matters.

18. I say this because in this application we have, on the one hand, letters and memos from certain officers within the RCCC who spoke in support of releasing the applicant on bail for reasons of lack of funding, lack of proper diet and lack of proper medical facilities while on the other hand we also have documents presented to the court also written by officers within the RCCC saying a different story. I am here referring particularly to the letter from the Inspector/Welfare Officer of the RCCC, Mr. Percy Elima, and the memorandum from the Catering-In-Charge at RCCC, Mr. George Nolley ("Exhibits CKC-3" to the applicant's sworn statement filed on 04/07/11). These two officers spoke in support of releasing the applicant on bail for the reasons that the RCCC is not in a position to provide proper diet for the applicant and the fear of the applicant spreading the disease (diabetes) to other prisoners in the prison compound (although I am yet to be convinced that diabetes is a communicable disease to justify such fear) as well as the alleged failure by medical officers from the National Referral Hospital ("NRH") to visit the RCCC for checks on diabetic prisoners, etc. On the other hand, there is also the letter, which has been tendered from the bar table by counsel for the Crown, addressed to the Chief Justice dated 6th July 2011 from the Commandant of the RCCC, Mr. William Aheia, stating that the RCCC has a special diet in place for the applicant and that there are arrangements also in place to have the applicant taken to the National Referral Hospital should his diabetic condition worsens. These letters contradict each other and they beg the question as to which of these letters represents the official position of the RCCC.

19. Then we have the memorandum by OIC Medical at the RCCC, Inspector George Hagi R/N, ("Exhibit CKC-3" to the applicant's sworn statement filed on 04/07/11) who contacted a medical examination on the applicant and concluded that the applicant's general condition was "satisfactory and not in distress" but then expressed the fear that remaining in custody would trigger blood sugar levels to high proportions and hence lead to other complications.

20. I cannot rule out the possibility that the letters from Mr. Elima and Mr. Nolley, and even Inspector Hagi, may have been written at the request by the applicant or someone on his behalf and may have been tailored to suit the purposes of the applicant. This is unacceptable practice. Prison officers must be informed of the proper chain of command within the RCCC and the official position of the RCCC in relation to such matters must come from the head of the RCCC or its duly authorised spokesman.

21. The second concern I wish to express about the material presented in this application is the manner in which the letters and memoranda from the RCCC officers came before the court. In the case of the letters from Mr. Elima and Mr. Nolley and the memorandum from Inspector Hagi, these were produced as exhibits to the sworn statement by the applicant. The letter to the Chief Justice from the Commandant of the RCCC, Mr. William Aheia, was presented to the court from the bar table by counsel for the Crown. Strictly speaking, all these materials are hearsay as to their content and are inadmissible. A prison officer or medical officer expressing an opinion in relation to the medical condition of a person applying for bail, or expressing an opinion on the ability of the prison service to properly look after such person, must do so in the form of a direct sworn statement signed by himself or herself and not by writing letters, memoranda or notes addressed to the public at large or to the court with the aim of those letters, memos and notes being produced to the court as exhibits to someone else's sworn statement. Such materials would be admissible only to the extent that they are proof of the fact that they have been written by the officers concerned but they are inadmissible as proof of the truth of their contents.

22. I hope counsel and the responsible authorities will take note of these remarks.

THE COURT

_________________________

Justice James Apaniai
Puisne Judge