Regina v Rimanu [2011] SBHC 55; HCSI-CRC 20 and 21 (14 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

NELSON RIMANU & KONA BAEGA

Date of Hearing: 8th July 2011
Date of Judgment: 14th July 2011

Ms Kesaka for the Crown/Respondent
Mr. Gray for Nelson Rimanu
Mr. Valenitabua for Kona Baega.

RULING ON BAIL APPLICATION

Apaniai, PJ:

1. This is an application for bail by the applicants, Kona Baega and Nelson Rimanu. Both applicants have been jointly charged with the murder of Justus Belo ("deceased") on or about 10th June 2010 at Niu Rove village, North Malaita.
   
2. This application is the applicants' second attempt at bail. Their first 1st application was heard by his Lordship, Mr. Justice Faukona, on 14th February 2011 but was refused in his Lordship's ruling dated 24th February 2011.
   
3. As this is the applicants' second attempt at bail, I must remind myself of the principles governing subsequent bail applications by the same person whose bail application had previously been refused. These principles are clear. They have been outlined in R v Nottingham Justices ex parte Davies[1] ("Davis") and confirmed by his Lordship, Mr. Justice Kabui, in Bartlett v R[2] ("Bartlett"). A number of other cases[3] decided by this court have also mentioned those principles. I have referred to those principles in R v Charles Keku Chivili[4] ("Chivili"). I said at p. 1 of my ruling:
   

"... 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.."

4. I further stated (at p. 2) of that ruling as follows:
   

"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."

5. The above principle requires that to qualify for another attempt at bail, the applicant must first satisfy the court, either 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 has emerged which was not before the court at the time of hearing of the previous application. Having satisfied the court that the application qualifies for hearing, the second step is for the applicant to further satisfy the court that the change in circumstance or the new fact justifies the granting of bail.
   
6. Having heard submissions by counsel for the applicants, it appears to me that these (second) applications stem from remarks made by his Lordship, Mr. Justice Faukona, in paragraphs 28 and 29 of his ruling in which he stated that the applicants' surety, Mr. Sam Baega, instead of merely filing a sworn statement, should appear in court at the hearing to confirm his undertaking to act as surety and to enlighten the court as to his strategy and how best he could manage the applicants whilst away at work.
   
7. It seems that counsel had interpreted those remarks to mean that the decision by his Lordship in dismissing the application was not final and that the applicants could come back to court again at anytime and re-argue what they had already argued before Justice Faukona as long as they take the surety, Mr. Sam Baega, along to verbally testify in court regarding his obligation to act as surety and his strategies and to enlighten the court as to how he would manage the applicants while at work.
   
8. It seems that that understanding had prompted counsel for the applicants to bring the surety, Mr. Baega, along at this hearing and to seek leave to put him in the witness box. Having being granted leave, Mr. Baega then gave oral testimony from the witness box confirming his willingness to act as surety for the applicants and explaining how he would manage the applicants while at work. He also confirmed that, if granted bail, both applicants would reside with him at Auki, Malaita Province.
   
9. In my opinion, counsel have misinterpreted Justice Faukona's remarks. If his Lordship's remarks were intended to convey what counsel said they meant, his Lordship would have adjourned the case to allow the surety to appear in court to testify before his Lordship makes any decision in regards to the application. Unfortunately, his Lordship did not adjourn the application. He dismissed it. By doing so, he had made a final decision in relation to that application and that puts an end to the application. If the applicants want to make a further attempt at bail, as they are now doing, then the general principles (that govern the granting of subsequent bail applications where a previous one had been rejected) would apply.
   
10. In respect of these applications, the affidavits filed in support have not shown any new facts or changed circumstances which would persuade me to hear these applications, let alone grant them. Even the clarifications made by the surety in his verbal testimony have not convinced me that bail should be granted. The reasons are, first, the surety, Mr. Sam Baega, said that he would accommodate the two applicants at his residence in Auki if they were to be granted bail. I do not think it is proper for two persons accused of murder to be accommodated together in the same house while on bail. It would not look right in the eyes of the public. They should live separate while on bail.
    
11. Secondly, I have doubts as to the surety's ability to adequately support the applicants financially while on bail or that his residence in Auki is a suitable place for them to be accommodated. In his testimony to the court, the surety said he is married with 5 children and that his wife and the children are living with him in Auki. Apart from his wife and children, he also has his last-born sister, as well as his younger brother called Joe, also living with him in Auki. In addition, there is a student by the name of Cathy Sikele also living with him at Auki. So, currently, he has 9 people (including himself) already in the house.
    
12. As if that is not enough, Mr. Baega said he intended to request his uncle, who lives back in their village, to come and live with them also in Auki so that he (the uncle) could watch over the applicants while the surety is at work. That will take the number living with the surety in Auki to 10. If bail is granted and the applicants are to be accommodated again by the surety, he will have a total of 12 people whom he would support financially in terms of food, light, water and other needs.
    
13. Furthermore, since the applicants will reside in Auki, they will have to travel to Honiara and back each time their cases are called for mention or hearing. The surety says that he will pay for the applicants' fare when travelling from Auki to Honiara and return. That will be another financial burden for the surety. I need no evidence to convince me how tough it is to survive in places like Auki, Honiara and other urban centres. Here, we will have 12 people living in the same house with only one person, the surety, earning the income to support the whole house and to meet the other financial commitments that may be imposed if bail is granted. He has provided no evidence of his financial standing or the size of his house in order to give an indication of his ability to house and financially support all those dependents.
    
14. The surety has given an indication during his verbal testimony in court that he will start a chicken house so that the applicants could have something to occupy them during their stay with him and to cater for their living and travelling expenses. This is a statement about the future. A similar statement about the future was made in R v Voga[5]. I had this to say about that statement:-
    

"Counsel for the accused has also submitted that a reconciliation ceremony will take place in June 2011 between the accused (represented by his brother) and his wife and the community at Koilovala village and has asked that the ceremony be taken into account as a sign of remorse. ... Here I am being asked to take into account an event which has not yet occurred. There is a danger of taking into account such events. First, one cannot guarantee that the event will eventuate despite the many assurances by the chiefs concerned. Until the event takes place there is always a possibility that it might not. ... It is not safe to take into account a future ceremony which may or may not eventuate."

15. Likewise, I cannot, in the present case, take into account a statement about what might take place in the future on the basis that there is no guarantee that it will happen. It is not safe to take into account an event which might or might not eventuate. The fact is, no chicken house has yet been built and that settles it.
    
16. Finally, I have considered the other reasons advanced on behalf of the applicants and I think there may be merits in those reasons. However, in any bail application, it is important to satisfy the court that a proper place of residence has been secured for the accused while on bail. In the present case, I am not satisfied as to the suitability of the surety's residence or the ability of the surety to provide financial support for the applicants. The surety has indicated that he is in a position to pay into court the sum of $1,000.00 for each applicant as a sign that he will honour his obligations as a surety. I have no doubt he has the $2,000.00 to pay into court, but the question is whether he will have the money to meet his future financial obligations not only in regards to providing for his household but also in seeing to it that the applicants attend their court hearings in Honiara if bail is granted.
    
17. For these reasons, these applications are dismissed.
    

THE COURT

__________________

James Apaniai
Puisne Judge

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^[1] [1981] QB 38)
^[2] CRC No. 22 of 2006
^[3] For instance, see R v Ainas Buga & Others CRC No. 115 of 2009, Baeoro v R CRC No. 224 of 2008.
^[4] CRC No. 137 of 2011, at p.2.
^[5] CRC No. 38 of 2011, at p. 5.