Regina v Vangala [2011] SBHC 69; HCSI-CRC 268 of 2011 (9 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

PETER VANGALA

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

Ms. N. Kesaka for the prosecution
Mr. H. Fugui. for Applicant.

DECISION

Apaniai, PJ:

Introduction

1. The applicant, Peter Vangala, is charged with two counts of rape contrary to section 137 of the Penal Code (Cap. 26) and two counts of indecent assault contrary to section 141(1)(a) of the Penal Code.
   
2. It is alleged that the applicant raped Karen Taguava on two occasions at Gatokae village, Western Province, on unknown dates between January and February 2011. For the indecent assault charges, it is also alleged that he indecently assaulted the same lady twice on during the same period.
   
3. These are very serious charges. The seriousness is reflected in the penalties prescribed in respect of the offences. Rape charge carries a maximum of life imprisonment and indecent assault carries a maximum of 5 years imprisonment.
   

History of the case

4. There is, however, a history to this case which is relevant to this application.
   
5. The charges against applicant in respect of the above offences were laid on the 4th March 2011 and first came on for hearing before the Magistrate Court sitting at Honiara on the 5th March 2011. At that hearing, an order was made for the applicant to be remanded in custody.
   
6. The case then came on for mention again on various dates between 5th March and 1st April 2011. At the hearing on 1st April 2011, the prosecution failed to appear so the charges were dismissed for want of prosecution and the applicant was released from custody forthwith.
   
7. The prosecution appealed against the magistrate court's decision to dismiss the charges under section 283 (1) of the Criminal Procedure Code (Cap. 7) ("CPC").
   
8. I heard the appeal on 24th May 2011. The next day, I handed down my ruling allowing the appeal and I ordered that the applicant be remanded again in custody. He has remained in custody since then. He now applies for bail.
   
9. During the period of his release after the dismissal of the charges against him by the magistrate court, the applicant had remained at large. He even turned up in court at the hearing of the appeal against the dismissal of his case and peacefully surrendered himself when I made the order for his remand.
   

The law on bail

10. It has been held in a number of bail cases[1] that in very serious cases, such as murder and treason, bail will only be granted in exceptional circumstances and that the burden of showing the existence of exceptional circumstances lies with the accused while in all other cases, the burden lies with the prosecution.
    
11. Those decisions appeared to have been based on the court's interpretation of section 106 (1) of the CPC.
    
12. I have re-visited the wordings of section 106 of the CPC. In my view, section 106 (1) of the CPC (which must be read in conjunction with section 23 of the CPC) says nothing about burden of proof. Properly construed, it is simply a provision which, amongst other things, gives a police officer or a court the power to give bail at anytime to persons who have been arrested or detained without warrant for offences other than murder and treason and who are willing to give bail.
    
13. That means the burden of showing that bail should not be granted lies with the Crown in all cases, including murder and treason cases, and there is no requirement in law for accused persons to show that they are entitled to be granted bail. To hold otherwise would, in my view, be inconsistent with the presumed innocence of accused persons and their right to bail as guaranteed under the Constitution.
    
14. This does not, however, mean that bail will be granted in all cases. Each case must depend on its own circumstances and there may be cases in respect of which bail will be refused. As said by His Lordship, Palmer, CJ, in Kwaiga v R[2] at page 1:
    

"It is important to appreciate that simply because an accused has been charged with the offence of murder it does not necessarily follow that he should be denied bail. The presumption of innocence and liberty do not permit such presumption to be made."

15. It follows therefore that when considering an application for bail by a person accused of having committed a criminal offence, including the offence of murder and treason, the starting point must be that the accused is prima facie entitled to bail and it is for the Crown to show that bail should not be granted[3].
    

Grounds of objection by the Crown

16. In the present case, the Crown objects to the application on the following grounds:
    

[1] There is a risk of re-offending. The Crown says that paragraphs 8 to 12 of Mr. Virivolomo's affidavit raise this point.

[2] There is a risk of flight. The Crown says that the applicant comes from Vauna village, Gatokae Island, and there is the fear that he might not turn up for trial.

[3] Interference with Crown witnesses. The Crown says that, if released on bail, the applicant might return to Peava village where he was a mechanic and interfere with Crown witnesses.

[4] Seriousness of the offences. The Crown says that the offences are very serious.

[5] Strength of the Crown's case. The Crown says that its case is very strong.

17. As to the 1st ground put forward by the Crown, I do not agree with the interpretation given to paragraphs 8 to 12 of Mr. Virivolomo's affidavit. In a nutshell, the crux of what Mr. Virivolomo is saying in those paragraphs is that he knew that the applicant is charged with raping a young girl and that his daughter is also a young girl of the same age as that young girl. However, he believes that the applicant is not a risk to his daughter because the applicant's family are also residing with him and the applicant is his younger brother. If Mr. Virivolomo is fearful of the applicant as alleged by the Crown, he would not have agreed to the applicant residing in his house, let alone agree to become the applicant's surety.
    
18. As to the 2nd ground, I do not agree that there is a flight risk as alleged by the Crown. As I said in paragraph 9 above, during the period of his release after the dismissal of the charges against him by the magistrate court on 1st April 2011, the applicant had remained at large until 24th May 2011. He knew there was an appeal against the dismissal of the charges against him. He could have escaped when he knew about the appeal. He had not escaped. Instead he turned up in court at the hearing of the appeal on 24th and waited at the court premises for the prison officers to come and take him when I made the order for his remand. His actions are inconsistent with those of a person who is a flight risk.
    
19. As for the 3rd ground, that concern can be addressed by the usual orders prohibiting accused persons from communicating with Crown witnesses and a further order directing him to reside with Mr. Virivolomo at Naha in Honiara and not to go beyond the boundaries of Honiara without a court order.
    
20. As to the 4th ground advanced by the Crown, while I agree that the Crown might have a strong case, I am not convinced that the ground, by itself, is sufficient to justify a denial of bail to the applicant.
    

Decision

21. For these reasons, I allow the application and make the following orders and directions as conditions for granting bail to the applicant:
    

[1] The applicant is to reside with his brother, Moses Virivolomo, at Naha, Honiara, and must remain at all times within the boundaries of Honiara 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 the victim or with any of the prosecution witnesses.

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

[5] Moses Virivolomo, the surety, to pay into court the sum of $1,000.00 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 Moses Virivolomo has paid the said sum of $1,000.00.

[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] R v Kong Ming Khoo - (unreported) HCSI – CRC ... of 1991; R v Dickson Maeni - (unreported) HCSI – CRC 117 of 1999
^[2] CRC No. 333 of 2004
^[3] See Kelesiwasi v R CRC No. 24 of 2004