Ngoro v Regina [2011] SBHC 56; HCSI-CRC 305 of 2010 (15 July 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 305 of 2010

MONTROSE NGORO, SAM DANGI, TUBARA BIARA and BENDLEY BIARA

v

REGINA

Ms Joel for the Crown
Mr Pitabelama for the Applicants/Defendants

Date of Hearing: 12th July 2011
Date of Judgment: 15th July 2011

Decision on Bail application
(Chetwynd J)

1. On 12th July I heard an application for bail. I refused the application and gave brief reasons for doing so. The full reasons follow.

2. The four defendants are charged with murder. They were arrested, with others, "on or about" 26th February 2010. They were committed to stand their trial at the High Court following a short form preliminary inquiry and it appears that happened on 23rd May 2010. They were remanded in custody pending trial. An application for bail was heard by Cameron J in Gizo. His written ruling on the application indicates it took place on 13th September 2010. He refused the application in respect of these defendants but granted bail to six others. That was on the basis, "The Crown has advised that in the case of these six defendants the Crown will be reviewing the appropriateness of the charge of murder". The Crown also indicated to His Lordship that as the evidence against the six was not strong they did not oppose bail.

3. I drew counsel's attention to the Nottingham Justices' case [1]. It is still good law in this jurisdiction [2]. If there has been a previous bail application before the court then the court will only consider new material. It has been said the mere passing of time does not constitute new or fresh material. In this jurisdiction that bland presumption is not appropriate because of the operation of section 5(3) of the Constitution. It has been said in several other cases (for example in R v. Bartlett Criminal Case 427 of 2005 per Goldsbrough J in his ruling on bail dated 21st September 2005) that the section is mandatory. If the defendant is not tried within a reasonable time he shall be released or as Goldsbrough J put it;

"The constitution envisages, nay directs, that if a person does not receive a trial within a reasonable period then he must be released on bail. This must mean that even where an applicant is quite otherwise unsuitable to be granted bail, nevertheless the court must do so."

The constitutional provision will even take precedence over the provision in the Criminal Procedure Code at section 106 that bail in murder (or treason) cases is only granted in exceptional circumstances.

4. After hearing and reading submissions the only "fresh" or "new" consideration is the question of time and whether the provisions of section 5(3) are operative. Nothing new has been put forward which could otherwise establish exceptional circumstances. Whether the defendants have not been tried "within a reasonable time" is a question to be decided on by reference to each particular case. Can it be said in this case that there has been unreasonable delay?

5. The defendants have been in custody since the end of February 2010, or some 16 months. They were committed for trial in May 2010 some 13 months ago. The prosecution say there are 22 witnesses. The evidence deals with the identification of those involved in the attack and fatal stabbing of the deceased. Whilst I can accept, as the prosecution submit, most cases wait for two years before they get listed for trial that in itself does not displace a finding that a delay of less than two years can be or is unreasonable. As said above, it depends on the circumstances of each case.

6. One of the difficulties in this case is the apparent lack of adherence to the procedures set out in the Criminal Procedure Code in particular those set out in section 229 to section 239. The court simply has no idea what statements were before the court in the committal proceedings. The court file I have before me is bereft of any statements and there is no explanation why. There is no way of knowing what witnesses had been identified then and whether new ones have identified since. That might explain the delay. Not only that, it is staggering to see the information was only filed in the High Court on 11th July this year and I have no doubt the only reason why it was filed at all is because of the bail application. This is quite simply not good enough. By way of explanation it was said the person in the DPP's office who had carriage of the file left (in June) to take up another position. That does not explain why he was unable to file an information in the previous 12 months.

7. This case is getting perilously close to a situation where the court will have no option but to say the defendants have not been tried within a reasonable time. However, we are not quite in that situation yet. Because nothing new for the court to consider has been raised in this application and because there are certainly no new exceptional circumstances put forward and because it cannot yet be said there has been unreasonable delay in bringing the defendants to trial, I refused the application. I confirm that decision. The defendants will remain in custody. However, I did promise the defendants that I would keep an eye on this case and I shall. If there is no or little sign of apparent progress made in bringing the defendants to trial I shall, of my own volition, bring the case back before the court. The constitutional protection given to the defendants by section 5(3) can then be re-considered.

Chetwynd J

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^[1] R v Nottingham Justices, Ex parte Davis [1980] 2 ALL E.R. 775
^[2] Saea v Regina [2007] SBHC 158; HCSI-CRC 157 of 2006 (4 December 2007); Penai v Regina [2010] SBHC 103; HCSI-CRC 413 of 2008 (1 October 2010); Kwaimani v Regina [2005] SBHC 11; HCSI-CRC 318 of 2004 (8 September 2005); Bartlett v Regina [2006] SBHC 4; HCSI-CRC 022 of 2006 (17 February 2006)