Regina v Oso [2013] SBHC 42; HCSI-CRC 123.2012 (2 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

-v-

MANASE OSO, MARA KILI, SAE BELO
AND KEITH ASHLEY

Date of Hearing: 28th March 2013
Date of Judgment: 2nd April 2013

Mr. Aulanga for the Crown/Respondent.
Mr. Ghemu for the accused/Applicant.

RULING

Apaniai, PJ:

1. This is an application for bail by Mara Kili ("applicant"), who is one of the accuseds charged with the murder of Alwin Wako ("deceased") at Vura in Honiara on or about 2nd April 2012. The other accuseds are Manase Oso, Sae Belo and Keith Ashley.
   
2. The application is supported by two affidavits, one sworn by the applicant and the other by Mr. Joel Placido.
   
3. In his affidavit, Mr. Placido says that he is the brother of the applicant and lives at Kofiloko, a settlement within Honiara city. He says he is prepared to provide accommodation for the applicant and to act as his surety if granted bail. He has offered $1,000.00 in cash as a guarantee for the appearance of the applicant in court as and when required.
   
4. I note that this is the second application for bail by the applicant. The first application (made on 10th May 2012) was a joint application by all the accuseds, including the applicant.
   
5. In that application, bail was granted only to Sae Belo and Keith Ashley on the grounds that they were juveniles and needed special treatment and that Mr. Charles Ashley, who is Keith Ashley's father, was prepared to act as their surety and to accommodate them while awaiting trial.
   
6. In that application, I refused to grant bail to Manase Oso and the applicant. The refusal to grant bail to the applicant was based on the grounds that he had no permanent address, that it was not known who his parents were and where they lived and that it was not clear whether or not Mr. Ashley, who was prepared to act as his surety, was also prepared to accommodate him. I have stretched in my ruling in relation to the applicant that having a permanent or fixed address is vital to ensure that the applicant could be contacted in connection with his case where necessary.
   
7. As this is the applicant's second attempt at bail, I must remind myself of the principle relating to subsequent bail applications by the same person whose previous bail application had been refused. The principle was set out in R v Nottingham Justices ex parte Davies[1] ("Davies") and was adopted in this jurisdiction in a number of cases including Bartlett[2] and Gwao[3].
   
8. The principle is that a subsequent bail application by the same person whose previous bail application had been refused cannot be entertained unless the subsequent application raises matters of fact that had been omitted in the previous bail application or unless new facts have caused changed circumstances to occur so that a fresh bail application is justified. Other than that, the subsequent bail application cannot be entertained.
   
9. In this case, the question is whether this application has raised matters of fact which have been omitted in the applicant's previous bail application or whether new facts have caused changed circumstances to occur to justify this fresh application.
   
10. Counsel for the Crown has submitted that no new matters have been raised in this application and no changed circumstance had occurred to justify this fresh application.
    
11. On the other hand, counsel for the applicant, as I understand, submits that two circumstances have arisen since the last application which now justifies this fresh application.
    
12. Counsel says that the first application was refused for two reasons. These are, first, the fact that that it was not known who the applicant's parents were or where his parents lived and, second, the fact that it was not clear whether Mr. Ashley, who was prepared to act as his surety, was also prepared to accommodate him.
    
13. Counsel submits that these two circumstances have now changed in that the applicant's brother, Mr. Joel Placido, is now prepared to act as his surety and the applicant now has a fixed address, which is that of his brother, Mr. Joel Placido, who lives at Kofiloko, a settlement within the boundaries of Honiara city.
    
14. In addition to those two changed circumstances, counsel for the applicant also submits that no date has yet been fixed for the trial of the case and there is no possibility that the trial will take place this year.
    
15. I think there is force in the submission of counsel for the applicant. Introducing a surety where none was introduced at the previous application, or introducing another surety or a further surety in addition to an existing surety, is a new fact or new consideration which would justify re-visiting the question of bail[4].
    
16. In the applicant's previous application, Mr. Ashley's offer to act as his surety was rejected on the basis that there was no evidence that Mr. Ashley was prepared to accommodate the applicant. Now his brother, Mr. Placido, has offered not only to act as his surety but also to accommodate him. Mr. Placido has a fixed address at Kofiloko where the applicant could be easily contacted.
    
17. I have also considered the fact that it is not possible for the case to be tried this year. This means that there will be delay in prosecuting this case. Delay, per se, may not be sufficient ground to grant bail. However, in this case, delay coupled with the provision of acceptable surety with a fixed address is a strong ground for the grant of bail.
    
18. After all, the main concern in considering a bail application is the assurance that the applicant will appear at the trial to answer the charge or charges against him[5].
    
19. It follows therefore that in my view the applicant has shown sufficient ground to justify granting of bail in his favour subject to the imposition of such conditions as will ensure his attendance in court as and when required.
    
20. Accordingly, bail is granted to the applicant subject to the following conditions:-
    

[1] The applicant must reside with Mr. Joel Placido and his family at Kofiloko and must not leave Mr. Placido's residence at night between 6pm to 6am each and every day of the week.

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

[3] The applicant must not travel outside the boundaries of Honiara without the order of the court.

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

[5] Mr. Placido shall act as surety for the applicant in the sum of $2,000.00 to ensure compliance with these bail conditions and the applicant's attendance in court whenever the case comes on for hearing.

[6] The applicant shall not to be released from custody until the $2,000.00 has been paid into court.

THE COURT
________________________
James Apaniai
Puisne Judge

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^[1] [1981] QB 38.
^[2] CRC 22 of 2006.
^[3] CRC 481 of 2010.
^[4] See R v Gwao CRC 481 of 2010.
^[5] Taisia v DPP [2001] SBHC 73 (9 October 2001).