Regina v Bolea [2011] SBHC 68; HCSI-CRC 256 of 2011 (9 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

FREDRICK BOLEA

Date of Hearing: 3 August 2011
Date of Judgment: 9 August 2011

Ms. A Driu for the Crown/Respondent.
Mr. Gray G for the accused/Applicant.

RULING ON BAIL APPLICATION

Apaniai, PJ:

Introduction

1. This is an application for bail by the applicant, Fredrick Bolea, who has been charged with the murder of Edward Tove on 17th March 2010 at Haroro village, Ngella, Central Islands Province.
   
2. In support of the application, the applicant had filed an affidavit on 19/07/11 in which he has set out the reasons why he should be granted bail. A surety, Mr. Marvin Parina, had also filed an affidavit on 12/07/11 agreeing to become surety for the applicant to guarantee the applicant's appearances at later hearing dates. The applicant's father, Mr. Willie Piru, had also filed another affidavit on 12/07/11 in support of the application.
   

Grounds in support of application

3. In his affidavit, the applicant has put forward the following grounds as the reasons why he should be granted bail:-
   

[1] He was arrested on 19th March 2011 and has been in custody since then.

[2] He is related to the victim and they are from the same village.

[3] To date he has been coming to court for directions only and it is possible his trial might not take place until 2012.

[4] He has no previous convictions.

[5] He has a surety who can vouch for his future attendances at court to answer the charge.

[6] He wants to stay with his brother at Tulagi and to be part of the reconciliation process that is being arranged between his family and that of the deceased.

[7] He is willing to abide by any conditions that the court might feel inclined to impose if granted bail.

4. Mr. Marvin Parina, the surety, has also filed an affidavit confirming his connections with the applicant as elder brother, their connections with the deceased as relatives, his willingness to act as surety for the applicant, his permanent job as senior accountant with the Central Provincial Government and the proposed reconciliation ceremony between their relatives and the deceased's relatives.
   
5. Mr. Willie Piru is the father of the applicant and Marvin Parina. He has also filed an affidavit in support of the application reiterating the same grounds stated by Mr. Parina.
   

Opposition to the application

6. The Crown opposes the application and has filed an affidavit by Sergeant David Saueha in support of its opposition. In that affidavit, Mr. Saueha has stated that he was the investigating officer dealing with the murder case. He says that as a result of the killing, there was tension between the applicant's family and the deceased's family and that both families are from the same village of Haroro in Ngella. He also says that Tulagi, where the applicant intends to stay with his brother, Marvin Parina, if bail is granted, is less than an hour's trip by boat to Haroro village. As such, the chances of interference with crown witnesses is high and so is the likelihood of further tension between the applicant's relatives and those of the deceased if the applicant is released on bail. For those reasons, the crown opposes the application.
   

The law on bail

7. The starting point when considering bail applications is the Constitution. Section 5 (1) (f) of the Constitution prohibits the deprivation of the personal liberty of a person except as authorized by law and only upon reasonable suspicion that he or she has committed a criminal offence.
   
8. Even where the person is charged with a criminal offence, section 10 (2) (a) of the Constitution provides that he or she is presumed innocent until proved guilty or until he or she has pleaded guilty.
   
9. In addition, section 5 (3) (b) of the Constitution provides that where a person is arrested or detained as a result of a reasonable suspicion that he or she has committed a criminal offence, that person must be brought before a court of law without delay or, if bringing him or her before a court will be delayed, then he or she must be released either unconditionally or upon reasonable conditions, including such conditions that will ensure his attendance at trial.
   
10. In R v Kong Ming Khoo ("Khoo")[1], it was held that, in determining whether or not to grant bail to a person accused of murder or treason, the question is whether there are in existence "exceptional circumstances" justifying the granting of bail. It was also held in that case that the burden of showing the existence of exceptional circumstances lies upon the accused. The decision was based on the court's interpretation of section 106 of the Criminal Procedure Code Act (Cap. 7) ("CPC").
    
11. Section 106 of the CPC provides as follows:
    

"106 - (1) Subject to the provisions of section 23 where any person, other than a person accused of murder or treason, is arrested or detained without warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person may in the discretion of the officer or court be admitted to bail with or without a surety or sureties. (2) The amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive. (3) Notwithstanding anything contained in subsection (1), the High Court may in any case direct that any person be admitted to bail or that the bail required by a Magistrate's Court or police officer be reduced."

12. Section 106 of the CPC must be read in conjunction with section 23 of the CPC. Section 23 authorises a police officer to give bail to a person who has been taken into custody without a warrant for an offence other than murder or treason where it is not possible to bring that person before a magistrate court within twenty four hours after he or she has been taken into custody.
    
13. The subject matter of subsection (1) of section 106 is the granting of bail by a police officer or the court to persons arrested or detained without warrant by a police officer, etc, for offences other than murder or treason in cases where the accused is willing to give bail. The provision has given the police officer or the court the discretion to give bail to the accused in such cases. The words "other than a person accused of murder or treason" in both section 23 and section 106 of the CPC simply mean that the police has no jurisdiction to give bail to persons accused of murder and treason. Bail applications by persons accused of murder or treason can only be heard by the High Court under section 106 (3) of the CPC. The words "other than a person accused of murder or treason" in section 106 (1) have nothing to do with shifting of the burden of proof from the Crown to the person accused of murder or treason in applications for bail. The burden of showing that bail should not be granted always remains with the Crown whether the offence charged is murder, treason or any other criminal offence.
    
14. In Taisia v DPP case ("Taisia")[2], it was held that the deciding factor in a bail application by a person accused of murder or treason is whether or not the accused will appear at the trial date. It was also held that, in deciding whether or not the accused will appear, the court must consider such factors as the nature of the accusation against the accused, the nature of the evidence supporting the accusation, the seriousness of the penalty that may result upon conviction and the availability of sureties.
    
15. In that case, His Lordship, Mr. Justice Kabui, stated at page 1 as follows:
    

"The court has discretion to grant bail or not to grant bail. This means that granting of bail is not automatic on its own. The exercise of the discretion of the Court therefore depends on the facts of each case before the Court in view of the principles governing bail application in murder cases as this case. In the first place, a person who is detained by Police in connection with the offence of treason or murder cannot be released by the Police but must be brought to the Magistrate Court as soon as is reasonably possible. This is done under section 23 of the Criminal procedure Code Act. The reason for non-release of a person held by the Police in connection with treason or murder is that such offences are serious offences. In such cases, bail can only be granted by the High Court. The test to be applied is whether or not it is probable that the accused will appear in Court at the trial date. This test is applied by considering factors such as the nature of the accusation against the accused, the nature of the evidence supporting the accusation, the seriousness of the penalty that may result upon conviction and the availability of sureties as the case may be."

16. In that case, emphasis was placed on the question whether or not the accused will appear at trial. In other words, the risk of flight is the deciding factor in that case. The issue of exceptional circumstances was not referred to in that case nor was the question of the burden of proof decided in that case.
    
17. In Kwaiga v R ("Kwaiga")[3], the applicant was charged with murder. In granting him bail, His Lordship, Palmer, CJ, said at page 1:
    

"In murder cases, while bail may only be granted by the High Court, it is important to bear in mind the presumption of innocence and presumption of liberty reflected in a prima facie right of an accused to bail; this must always be the starting point in any bail applications. The burden of proof lies with the prosecution to show that on the balance of probabilities an accused should not be granted bail."

The present case:

18. In the present case, the applicant is charged with murder. He is now applying for bail.
    
19. In accordance with the principles stated above, the burden is on the Crown to show that the applicant should not be given bail.
    
20. The reasons advanced by the Crown in opposition to the bail application have already been set out in paragraph 6 above. I do not think the reasons are sufficient to deny bail to the applicant in the light of the entrenched provisions of sections 5 and 10 of the Constitution.
    
21. While the risk of flight and the risk of administration of justice are risks that can readily be assumed in the light of the seriousness of the offence with which the applicant is charged, the circumstances of this case are such that I am convinced the applicant is genuine in his assurance of his appearance at the trial date and all future hearings of this case. I am also satisfied that these risks can be addressed by imposing stringent bail conditions on the applicant.
    

Ruling

22. Accordingly, I grant bail to the applicant on the following conditions:-
    

[1] The applicant is to reside with his brother, Marvin Parina, at Tulagi, Ngella, and must remain at all times within the boundaries of Tulagi and must not go outside of those boundaries without an order of the court.

[2] The applicant must not to communicate in any manner whatsoever, whether directly or indirectly, with any of the prosecution witnesses.

[3] The applicant must report to Tulagi Police between 8am and 4pm each Monday, Wednesday and Friday every week.

[4] The applicant shall remain at his brother's residence at Tulagi, and not to leave such residence without the order of the court, between 6pm to 6am each and every day of the week.

[5] Marvin Parina, the surety, must pay into court the sum of $2,000.00 as soon as possible as security for the attendance of the applicant at future hearings of the case.

[6] The applicant shall not be released until Marvin Parina has paid the said sum of $2,000.00.

[7] In the event of a failure to comply with any of these conditions, these conditions shall be vacated and all police officers are hereby authorised to re-arrest the applicant and take him into custody forthwith.

THE COURT

Justice James Apaniai
Puisne Judge

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^[1] (unreported) HCSI – CRC ... of 1991
^[2] [2001] SBHC 73 (9 October 2001)
^[3] CRC No. 333 of 2004