Regina v Oso - Ruling on Bail Application [2012] SBHC 47; HCSI-CRC 123 of 2012 (17 May 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

REGINA

-v-

MANASE OSO, MARA KILI, SAE BELO AND KEITH ASHLEY

Date of hearing: 10th May 2012
Date of Judgment: 17th May 2012

Mr. Aulanga for the Crown/Respondent.
Mr. Iroga for the accuseds/Applicants.

RULING ON BAIL APPLICATION

Apaniai, PJ:

1. This is an application for bail by the applicants, Manase Oso, Mara Kili, Sae Belo and Keith Ashley. The applicants have been jointly charged with the murder of Alwin Wako ("deceased") on or about 2nd April 2012 at Vura in Honiara. Oso is said to be 19 years old while Belo, Ashley and Kili are said to be 16, 17 and 18 respectively.
   
2. The application is supported by an affidavit sworn by Charles Ashley filed on 27th April 2012. In that affidavit, Mr. Ashley said that he is the father of one of the accuseds, Keith Ashley, and that the other three co-accuseds (Oso, Kili and Belo) are well known to him and that Kili and Belo have also been living with him and his family at Naha in Honiara.
   
3. However, the contents of Mr. Ashley's affidavit, in the main, simply outlined how the incident occurred as relayed to him by his wife; the remand of the accuseds at Rove and his attempts to visit the accuseds while in custody; attempts by the police to obtain a statement from his son, Keith Ashley; his consultations with Iroga of DNS & Partners; his discussions with the police about the accuseds; his letters to the prison authorities to be granted access to the accuseds at Rove; attempts to apply for bail at the Magistrate's Court; the fact that others, except him, were allowed to visit the accuseds at Rove; and his willingness to act as surety for all the accuseds.
   
4. It is not known who the parents of Oso, Kili and Belo are. Mr. Iroga said that Oso's father lives in Honiara and so is Belo's father. If that is so, affidavits should have been sworn and filed by both Oso's father and Belo's father to confirm that they live in Honiara and to indicate whether their accused sons, if granted bail, would be living under their care and supervision.
   
5. I note that Belo and Ashley, being under the age of 18, are juveniles and needed special treatment under the Juvenile Offenders Act (cap. 14). Oso and Kili, being adults, do not need special treatment.
   
6. The Crown opposes the application saying that the offence with which the applicants are charged is a very serious offence and if convicted the applicants would face life sentences; that the evidence against the applicants is strong; that investigations are still continuing and further statements are likely to be obtained from potential witnesses; that there will be interference with Crown witnesses; that there is a risk of absconding; that no reconciliation has yet been held between the applicants' families and the deceased's family and, as such, there will be tension between these families if the applicants are released.
   
7. As to the likelihood of interference with Crown witnesses, the Crown has referred to an affidavit sworn by constable Collin Ramosalu who said that Crown witnesses live in the Vura area which is close to the place where the accuseds live and that in a statement to the police, a Crown witness by the name of Victoria Toko said that Oso had instructed her at her residence to lie to the police that she did not know the attackers and that the attackers had come in a green vehicle at the time of the incident.
   
8. Constable Ramosalu also said that police informants have told him that Oso was about to escape to his home in East Kwaio when he was arrested.
   
9. The issue of granting bail to persons charged with murder has been considered previously in a number of cases[1]. The principles are that the seriousness of a charge is in itself not a reason for refusing bail[2] and that persons accused of murder may be given bail in appropriate circumstances unless there is evidence to show that there is a risk of flight or a risk of interference with Crown witnesses or that there is a likelihood that the applicant might re-offend if released from custody.
   
10. However, 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[3].
    
11. In the present case, the only accused implicated in connection with the risk of flight and the risk of interfering with Crown witnesses is Manase Oso. The other three accuseds have not been implicated.
    
12. Presumption of innocence and the right to a speedy trial of a person charged with a criminal offence are rights that are protected under the Constitution[4]. Similarly, the right to bail, with or without surety, where the person cannot be tried within a reasonable time is also a right that is protected under the Constitution[5].
    
13. In the light of these Constitutional provisions, it is my view that a person charged with an offence is prima facie entitled to bail, however serious the charge may be, and the burden is on the Crown to show on the balance of probabilities that bail should not be granted.
    
14. In the present case, the evidence shows that Manase Oso is a flight risk. In addition, the evidence also shows that he poses a risk of interfering with Crown witnesses. Finally, he has no permanent or fixed address from which he can be contacted if granted bail. While Mr. Charles Ashley has offered to act as his surety, however, there is no evidence that Mr. Ashley is also prepared to accommodate him. For those reasons, I reject his application for bail.
    
15. I now turn to the case of Mara Kili. He is an adult, he being 18 years old. However, he has no permanent address. It is not known who his parents are and where they live. He used to live with Mr. Charles Ashley and his family at Naha and Mr. Ashley is prepared to act as surety for him if granted bail. However, there is no evidence that Mr. Ashley is willing to accommodate him as well. Being willing to act as surety for this accused is not the same as being willing to accommodate him. Having a permanent or fixed address is important to ensure that the person can be contacted in connection with his case where necessary. I reject his application.
    
16. As for Sae Belo and Keith Ashley, I note that they are juveniles and that makes their case special. Unfortunately, Belo has no permanent or fixed address and it is not known who his parents are or where they live. I note that Belo used to live with Mr. Ashley and his family at Naha and that Ashley is also willing to act as his surety. As a juvenile, I am reluctant to allow him to remain in custody where there is a possibility of him mingling with mature criminals. I am prepared to release him on bail into the care and supervision of Mr. Charles Ashley.
    
17. Keith Ashley is also another juvenile, he being 17 years of age. He has a permanent and fixed address and has a family who can supervise him. His father, Mr. Charles Ashley, has agreed to act as his surety. I am prepared to release him on bail.
    
18. The orders of this court are as follows:-
    

[1] The application for bail by Manase Oso and Mara Kili is refused.

[2] The application for bail by Sae Belo and Keith Ashley is granted subject to the following conditions:-

[a] Both must not communicate in any manner whatsoever, whether directly or indirectly, with any of the prosecution witnesses;

[b] Both must reside with Mr. Charles Ashley and his family at Naha and must not leave Mr. Ashley's residence at night between 6pm to 6am each and every day of the week;

[c] Both must not travel outside the boundaries of Honiara without the order of the court;

[d] Both must report to Naha Police between 8am and 4pm each Monday, Wednesday and Friday every week;

[e] Mr. Charles Ashley shall supervise both while on bail and shall act as surety for both accuseds in the sum of $2,000.00 for each of the two accuseds (to be paid into court) to ensure compliance with these bail conditions and their attendance in court whenever the case comes on for hearing.

[f] Belo and Ashley are not to be released until the $4,000.00 has been paid into court.

THE COURT

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^[1] See R v Kwaiga CRC 334 of 2004; Kelesiwasi v R CRC 24 of 2004; Taisia v DPP [2001] SBHC 73.
^[2] See also Blackstone Criminal Practice 1992, at p. 1026.
^[3] Taisia v DPP [2001] SBHC 73.
^[4] See section 10, Constitution.
^[5] See section 5(3), Constitution.