Regina v Olofia [2011] SBHC 73; HCSI-CRC 269 of 2011 (17 August 2011)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

V

FRED OLOFIA

Date of Hearing: 12th August 2011
Date of Judgment: 17th August 2011

Mr. Fugui for the accused/Applicant
Ms. Kesaka for the Crown/Respondent

RULING

Apaniai, PJ:

1. The applicant, Fred Olofia (also known as Fred Bona Olofia), is charged under section 215(b) of the Penal Code with the attempted murder of Mary Pama ("victim") at Okea, Central Guadalcanal, on or about the 30th May 2010. In addition, he is also charged under section 226 of the Penal Code with causing grievous harm to the victim that same day.
   
2. According to the court depositions, the victim and her family as well as the applicant and his family, live in the same warehouse at Okea in Central Guadalcanal. There is a third family (Bori's family) which also lives in the same warehouse. So, there are three families that occupy the warehouse with the area occupied by each family being partitioned or separated from the others by the use of plastics and lavalavas which were hanged inside the warehouse.
   
3. On Saturday 29th May 2010, the victim's family left Okea and spent the weekend attending some church programmes (Saint day) at GPPOL 1 (Ngalibiu). They returned to their residence at Okea at about 8pm on Sunday evening, 30th May 2010.
   
4. While in their room, the applicant came and forced open the main entrance door to the room and called out for the victim's husband, Eddie Lulua ("Eddie"). Eddie came to the applicant and both went outside and had some discussions. The applicant appeared drunk.
   
5. Eddie then returned to the victim and both were talking when the applicant again found his way into their room and called out to the victim calling her loosed woman and telling to stop talking. The victim then replied questioning the applicant whether he had any custom at all.
   
6. It is alleged that the applicant then shouted to the victim to wait for him adding that he would kill her. The applicant then approached the victim and slapped her mouth. The victim then took out a knife and pointed it at the applicant thinking that the knife would frighten off the applicant. The applicant was not intimidated. He pulled out a kitchen knife from his shirt and stabbed the victim on the left side of her neck. He then ran away.
   
7. The victim was rushed to Gorou Health Clinic and finally ended up at the National Referral Hospital ("NRH") in Honiara where she was treated for her stab wound.
   
8. According to the doctor's report, the victim was bleeding profusely and was spitting blood when she arrived at the NRH. However, there was no significant injury except that the X-ray showed some free air in the prevertebral tissue which was suggestive of penetration of the oesophagus.
   
9. The applicant was arrested on 31st May 2010 and has remained in custody since then.
   
10. The applicant has had an interview with the police. In his record of interview, the applicant denied any attempt to murder the victim. He said that the injury was caused by the victim's own knife which the victim had used in an attempt to assault the applicant. The applicant said that in the process of him blocking off a swing of the knife at him by the victim, the knife flew and landed back on the victim's own neck.
    
11. The applicant further said that immediately after the incidence, he tried to reconcile with the victim and her family but the victim had refused his approaches. This means that there was no reconciliation between the parties and as such it is very likely that there is still some animosity between the parties.
    
12. It is not clear from the applicant's affidavit filed in support of the application as to where the applicant's family is now residing. I assume that the family must have vacated the warehouse in the light of the incident and may now be living with the applicant's mother at Vara Creek in Honiara for, according to his affidavit, that is the place where the applicant intends to stay if granted bail.
    
13. The law on bail is clear, that is, 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[1]. 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. That does not, however, mean that an accused person will be granted automatic bail in every case. Each case must depend on its own circumstances. Where appropriate, bail can be refused.
    
15. In the present case, the applicant has been charged with two very serious offences, one of which carries a maximum sentence of life imprisonment. Hence, the question to ask is whether the circumstances of this case are such that there is a real likelihood that the applicant will abscond if given bail or whether there is a risk of the applicant re-offending if given bail or whether Crown witnesses will be interfered with if bail is granted.
    
16. In regards to the risk of flight, I am not satisfied that the circumstances of the case are such that the applicant will abscond if granted bail. Neither am I satisfied that there is a risk of re-offending in the circumstances of this case since the parties no longer live together in the same house.
    
17. Furthermore, the victim and her family are not on speaking terms with the applicant and his family and therefore I do not think the risk of interfering with Crown witnesses is a possibility.
    
18. As such, I am of the view that this is a case in which bail may be granted to the applicant subject to such conditions as will ensure that the applicant appears at trial to answer the charges against him.
    
19. Accordingly, I grant bail to the applicant subject to the following conditions:-
    

[1] The applicant is to reside with his mother, Janet Musunala, at Vara Creek, 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 communicate in any manner whatsoever, whether directly or indirectly, with any of the Crown witnesses.

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

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

[5] 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] See Kelesiwasi v R CRC No. 24 of 2004