Regina v Gwao [2011] SBHC 54; HCSI-CRC 481 of 2010 (13 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

HENRY GWAO

Date of Hearing: 6th July 2011
Date of Judgment: 13th July 2011

Mr. Iomea for the Crown/Respondent
Mr. Barlow for the accused/Applicant

RULING ON BAIL APPLICATION

Apaniai, PJ:

1. This is an application for bail by the applicant, Henry Gwao, who has been charged, along with Isaac Kiriau, with the murder of Edmond Piarangi in Honiara on 15th February 2010. It is his second attempt at bail.

2. His first application ("1st application") was heard on 9th February 2011 but refused by His Lordship Mr. Justice Chetwynd in his ruling dated 15th February 2011.

3. This being the second attempt, I must remind myself of the principles relating to subsequent bail applications by the same person whose previous bail application had been refused.

4. In Bartlett v R, 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. In R v Charles Keku Chivili[1], I referred to the principles laid down by His Lordship in that case and said (at p2):

"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. 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."

6. That means, to qualify for another attempt at bail application, the applicant must first satisfy the court, either of the existence of a material change in the circumstances of the accused or of the case since the hearing of the previous application, or, of the emergence of new material which was not before the court at the time of hearing of the previous application. Having so satisfied the court, the second step is for the applicant to satisfy the court that the change in circumstance or the new fact justifies the granting of bail.

7. The applicant has filed three affidavits in support of the present application. The first affidavit was one sworn by himself and was filed on the 9th June 2011 and the other two were sworn by Henry Kelomae and Mr. Allen Kwai, both close relatives of the applicant. In their affidavits filed on the 5th July 2011, Mr. Kelomae and Mr. Kwai have offered themselves as sureties for the applicant. In fact Mr. Kwai had previously offered himself as surety for the applicant in two affidavits which he had previously filed on 24/11/10 and 08/02/11. This is his third affidavit in which he offers himself as surety for the applicant.

8. In his affidavit filed on 9th June 2011 ("new affidavit"), the applicant has deposed to substantially the same facts as those to which he had already deposed in his affidavit supporting his 1st application ("previous affidavit"). Those facts have been taken into account by His Lordship Mr. Justice Chetwynd when he refused the application on the 15th February 2011.

9. The only new matter raised in the new affidavit which may be of any significance is the fact that he has been in custody for 15 months as compared to 9 months at the time of the 1st application. From the court records, it appears that the applicant had been committed on 17th November 2010 to stand trial at the High Court. For the last 8 months, nothing much seems to have taken place for the purpose of moving the case to trial. However, I am not satisfied that a delay of 8 months is sufficient to amount to new material, or a change in circumstance, justifying another application for bail.

10. At the hearing of this application, counsel for the applicant had made substantial submission on the issues relating to the constitutional requirements of section 5 of the Constitution, the requirements of section 106 of the Criminal Procedure Code, the various legal principles governing the granting of bail as laid down in previous court decisions, the strength of the prosecution case, the personal circumstances of the applicant as well as the absence of the three well known risks (that is, risk of flight, risk of re-offending and risk of administration of justice) which normally cause concern for the courts when deciding the question of bail. Those same submissions have already been made before His Lordship, Mr. Justice Chetwynd, during the hearing of the 1st application. His Lordship had considered those submissions and ruled that no exceptional circumstance existed to enable him grant bail to the applicant.

11. What counsel for the applicant appears to be doing now is simply pointing to further areas of weakness in the prosecution case as shown from the statements of prosecution witnesses. These statements were before the court at the hearing of the 1st application and counsel has had the chance to point out those weaknesses at that time. He had missed that chance. He cannot ask the court for another chance. He can only ask the court for another chance to re-consider the question of bail if there is a material change in the circumstances of the accused or of the case since the hearing of the previous application, or, if new material which was not before the court at the time of hearing of the previous application has come to light.

12. Counsel for the applicant has also pointed to the fact that the applicant has secured a further surety (Mr. Henry Kelomae) in addition to Mr. Allen Kwai. Counsel submits that this amounts to a new fact or a changed circumstance justifying a fresh application for bail and the granting of bail.

13. There is no doubt in my mind that introducing another surety or a further surety in addition to an existing surety is a new fact or new consideration which would justify re-visiting the question of bail. However, the question is whether the introduction of the new or additional surety is sufficient ground to grant bail to a person accused of murder.

14. Providing sureties is necessary to ensure attendance of an accused person at trial. However, attendance at trial is not the only factor to be taken into account when considering the question of bail for a person accused of murder. Other factors such as the seriousness of the offence, the strength of the prosecution case, the risk of flight, the risk of interference with crown witnesses, family circumstances of the applicant, the risk of interference with the administration of justice and the risk of re-offending, are also matters that must be considered so that, although attendance at trial may be assured, if the court is satisfied that there are other reasons why the accused should not be granted bail, the court is entitled to refuse bail.

15. In the present case, His Lordship, Mr. Justice Chetwynd, has already considered the seriousness of the offence, the strength of the prosecution case, the risk of flight, the risk of interference with crown witnesses, family circumstances of the applicant, the risk of interference with the administration of justice and the risk of re-offending at the hearing of the 1st application. He has made his ruling. Apart from counsel's further submissions regarding the weakness of the prosecution case, nothing has been shown that would justify the hearing of this application for the granting of bail as sought in the application. As such, I do not think I have the jurisdiction to review His Lordship's decision.

16. It follows therefore that I must refuse this application and, accordingly, this application is dismissed.

THE COURT

_________________________

Justice James Apaniai
Puisne Judge

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^[1] CRC No. 137 of 2011, ruling dated 12^th July 2011.