Tofasi v Regina [2011] SBHC 96; HCSI-CRC 186 of 2011 (16 September 2011)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Criminal Jurisdiction

ADAM GWARO TOFASI

-v-

REGINA

Date of Hearing: 12th September 2011
Date of Judgment: 16th September 2011

Mrs. Fineanganofo for the Crown/Respondent.
Ms. Wagavonovono for the accused/Applicant.

RULING ON BAIL APPLICATION

Apaniai, PJ:

Introduction

1. On 21st March 2011, this court had convicted Filisi Olifei ("Olifei") of the murder of Billy Toito'ona ("deceased") on the 16th May 2009 at Kaibia Heights in Honiara and had sentenced Mr. Olifei to life imprisonment.
   
2. The applicant herein, Mr. Adam Gwaro Tofasi, is Olifei's father and he is charged with having aided and abetted Olifei in the murder of the deceased.
   
3. It appears that the applicant was initially arrested and interviewed by the police on 18th May 2009 but was later released on the ground that there was insufficient evidence to connect him with the murder of the deceased.
   
4. However, on the 23rd February 2011, the applicant was re-arrested at the High Court premises after the completion of his oral evidence in court on behalf of Olifei and was placed in custody. He has remained in custody since then.
   
5. He now applies for bail pending trial.
   

Grounds for bail

6. In support of the application, the applicant has filed 2 affidavits, one sworn by himself filed on 25th May 2011 and the other sworn by his brother, Raymond Nagao, filed on 25th May 2011.
   
7. In his affidavit, the applicant has denied the charge against him and appears to be saying that the case against him is weak. He said that he has now left Kaibia Heights and has resettled with his family at his home at Gwaio village in North Malaita.
   
8. He says that, if granted bail, he intends to stay with his brother, Raymond Nagao, at Fulisango in Honiara while waiting for his trial. Mr. Nagao, in his affidavit, has indicated his willingness to act as surety for the applicant and has confirmed that the applicant would reside with him and his family at Fulisango if bail is granted.
   
9. In her submission in support of the application, counsel for the applicant has pointed out 4 basic reasons why bail should be granted. First, she says that it is unlikely that the applicant's trial would take place in 2012. She says that according to the 2012 criminal calendar, only some of the cases committed for trial at the High Court this year have been listed for trial in 2012 and that even the reserve list for 2012 did not include murder cases. The crux of this submission is that there will be unreasonable delay in the trial of the applicant's case, hence, the applicant should be allowed on bail while awaiting trial.
   
10. Second, counsel says that while the evidence of some of the witnesses in Olifei's trial have indicated that the applicant may have aided and abetted Olifei in the murder of the deceased, the evidence of the other witnesses denied the applicant's involvement. By implication, what this submission says is that the crown's case against the applicant is weak.
    
11. Thirdly, counsel says that there is no evidence to show the existence of any of the three risks (risk of flight, risk of re-offending and risk of interference with witnesses), hence, bail should be granted.
    
12. Fourth, counsel says that in the judgment by His Lordship, Mr. Justice Mwanesalua on 21st March 2011 in the case of R v Olifei ("Olifei"), His Lordship found that there was no evidence to establish common purpose or aiding and abetting in that case. Counsel says that on the basis of this finding, the case against the applicant is very weak. I do not think I can accept this submission. Those findings are not binding on this court in the present case. The applicant was not a party in Olifei and therefore as far as the present case is concerned, that statement does not exonerate the applicant. Whether or not there was aiding and abetting by the applicant is an issue which will have to be decided on the evidence to be produced at the trial in the present case.
    

Objections to application

13. Counsel for the Crown, however, opposes the application. First, she says there is a risk of flight. She says that, of the 3 suspects in this case namely, Olifei, George Lee and the applicant, George Lee is still at large. She further says that the applicant had been avoiding police since 16th May 2009 and was only arrested on 23rd February 2011.
    
14. Second, counsel says there is also a risk of interference with Crown witnesses. She says that two of the Crown witnesses, namely Lucy Arudola and Wilson Arudola, are related to the applicant and can be easily influenced. She conceded, however, that there is no risk of re-offending.
    
15. Third, counsel for the Crown says that the charge is serious and that the Crown case against the applicant is strong and therefore bail should be refused.
    

The law on bail

16. In R v Fredrick Bolea[1] ("Bolea"), I had this to say:
    

"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.

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.

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."

17. When considering bail applications, it is important to bear in mind the above constitutional provisions for they form the starting point in all such applications. Section 5(1)(f) is the only basis upon which personal liberty can be lawfully restricted. Section 10(2)(a) provides for presumption of innocence until guilt is proved to the required standard. Section 5(3)(b) not only guarantees trial within reasonable time but also provides a prima facie right to bail if trial is to be delayed. That provision also gives the court a discretion when granting bail whether or not to impose conditions and, if conditions are to be imposed, the section provides that such conditions may include conditions that will ensure that the accused person attends his or her trial.
    
18. These constitutional provisions have formed the basis for many of the bail applications which have previously been decided by this court. For instance, 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. The court stated that, to decide 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.
    
19. Kwaiga v R ("Kwaiga")[3] is a case where the applicant was charged with murder. His Lordship, Palmer, CJ, in granting bail, had echoed the requirements of these constitutional provisions when said:
    

"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."

Assessment of the grounds of objection

20. These provisions do not mean that it is obligatory to grant bail to accused persons in every case. As stated in Kwaiga, each case must depend on its own circumstances so that, while accused persons who cannot be brought to trial quickly are prima facie entitled to bail, in appropriate cases bail may be refused and in every case the burden is always on the prosecution to show that bail should be refused.
    
21. In the present case, the applicant is charged with murder. He is now applying for bail. Hence, the question is whether or not he should be granted bail.
    
22. The reasons advanced by the Crown in opposition to the bail application have already been set out in paragraphs 12, 13, 14 and 15 above.
    
23. The first ground is the risk of flight. Counsel for the Crown says that of the 3 suspects in this case namely, Olifei, George Lee and the applicant, George Lee is still at large. She also says that the applicant had been avoiding police since 16th May 2009 and was only arrested on 23rd February 2011.
    
24. I do not quite agree with this submission. The fact that George Lee is still at large is no basis to assume that the applicant will abscond. There is no evidence to show why Mr. Lee is still at large. Is it because he is evading arrest or is it because the police does not want to arrest him or is it simply a case of the police not doing their job properly or are there some other reasons. No explanation has been provided to the court.
    
25. Similarly, there is no evidence before the court to support the Crown's assertion that the applicant had been avoiding arrest since 16th May 2009. In fact the records show that it was the police who had released him on or about the 16th May 2009 because there was insufficient evidence to justify laying charges against him. If he had been avoiding arrest as asserted, I do not believe he would have turned up in court on 23rd February 2011 knowing that he would be arrested if he did so.
    
26. Counsel for the Crown further submits that there is a risk of interference with Crown witnesses if the applicant is released on bail. Counsel refers particularly to witnesses Wilson Arudola and Lucy Arudola, who, she says, are related to the applicant and who, at the trial of Olifei, have changed their stories from what they said to the police in their recorded statements. If this assertion is true then in my view whether the applicant remains in custody or is released on bail would make no difference if these witnesses decide to speak in favour of the applicant as they seem to have done in Olifei. There is no assertion that the applicant, if released on bail, would also try and influence the rest of the Crown witnesses most, if not all, of whom are related to the deceased.
    
27. Finally, counsel for the Crown submits that the Crown has a strong case against the applicant and therefore bail should not be granted. Counsel refers to the statements by 3 of the Crown witnesses, namely, Charles Iro, Thomas Giosia and Diana Bibi.
    
28. The strength of the Crown case is certainly a matter that is to be taken into account in deciding bail applications. However, whether a case is strong or not depends very much on the evidence to be produced in court. That evidence can be found in the statements made to the police by the witnesses. I have read the statements of the Crown witnesses in the present case. While it is true that the statements by Charles Iro, Thomas Giosia and Diana Bibi appear to be damning in some ways to the applicant, the statements by Wilson Arudola, Lucy Arudola, Filis Olifei and the applicant himself also appear to say otherwise. As such, I do not think I can place much weight on whether or not the Crown has a strong case.
    

Bail granted

29. In the light of the assessment I have made in this case as stated in the preceding paragraphs and also taking into account the likely delay in prosecuting the case, I am satisfied that this is a case where bail should be granted.
    
30. Accordingly, I grant bail to the applicant on the following conditions:-
    

[1] The applicant is to reside with his brother, Raymond Nagao, at Fulisango in 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 any of the prosecution witnesses.

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

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

[5] Raymond Nagao, 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 Raymond Nagao has paid the said sum of $2,000.00.

THE COURT

_________________________
Justice James Apaniai
Puisne Judge

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^[1] CRC No. 256 of 2011 (Ruling 09/06/11), at para. 7, 8 and 9;
^[2] [2001] SBHC 73 (9 October 2001)
^[3] CRC No. 333 of 2004 at p. 1