Regina v Tapu [2016] SBHC 38; HCSI-CRC 459 of 2014 (17 March 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

CRC No. 459 od 2014

Regina

v.

Holland Tapu

Date of hearing: 17^th March 2016
Date of Judgment: 17^th March 2016

Mr Maito’o H for the Crown/Respondent
Mr Lawrence N for the Accused/Applicant

RULING ON BAIL APPLICATION

Kouhota PJ:

Introduction

1. This is an application for bail by the applicant Mr Holland Tapu .The applicant was charged with 2 counts of Rape contrary to section 137 of the Penal Code. It was alleged that on the 7th and 8^th October 2014, the applicant raped a girl by the name of Andrea Iwa.
   
2. According to documents on the case file, he was arrested on 8^th October 2014 and charged with 2 counts of Rape on the 17^th October 2014. He has been remanded in custody since then. He was committed for trial in the High Court after a short form PI on 12^th December 2015. He now comes to court seeking to be released on bail while awaiting his trial.
   
3. The applicant file no affidavit giving reasons in support of his application but a sworn statement was file by one Mathew Natei in support of the application in which he agreed to stand as surety for the applicant. Mr. Natei stated in his sworn statement that he will accommodate the applicant in his house if he is released on bail and is willing to make a cash deposit of $1000.00 as a surety for the applicant. The applicant is Mr Natei’s nephew. Mr. Natei lives at Lengakiki and works at the Rove Correctional Services clinic.
   

Opposition to bail

4. The Crown does not oppose bail but submits that strict conditions be attached if the applicant is released on bail to ensure the applicant attends court.
   

The Law on Bail

5. Solomon Islands currently does not have any specific legislation dealing with bail as in some neighbouring jurisdiction like Papua New Guinea where they have a Bail Act. The authorities on bail however are well settled in this jurisdiction and have been referred to by both counsels in their respective submissions. I am indebted to both counsel for their well-researched submissions which greatly assisted the court in making its decision.
   
6. As rightly pointed out by both counsels in their submissions, the right to bail is recognised by section 5 of the Constitution and section 106 of the Criminal Procedure Code (CPC). Section 5(3) (b) of the Constitution states that a person arrested or detained as a result of a reasonable suspicion of having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands, and who is not released or if he is not tried within a reasonable time he shall be released either unconditionally or upon reasonable conditions necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
   
7. Section 106 (1) of the CPC also provides that “ subject to the provisions of section 23 where any person other than a person accused of murder or treason, is arrested or detained without a warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail, such person may in the discretion of the officer or court be admitted to bail with or without a surety or sureties.
   
8. Section 106 (1) deals with granting of bail by a police officer to a person arrested or taken into custody without a warrant for any offence other than Murder or treason. The words other than a person accused of murder or treason in this section means that a police officer does have the discretion to grant bail except to a person accused of Murder or Treason, it seem that the same also applies to the Magistrates Court. Section 106 (3) however gives the High Court the discretion to direct in any case which in my view including Murder or Treason that any person be admitted to bail or that bail required by a Magistrate’s Court or policer officer be reduced.
   
9. In the present case, the applicant is not charged with Murder or Treason hence in my view this application could have been made in the Magistrates Court. I assumed the difficulty the applicant now faced in that regard, is that he is now committed for trial before the High Court hence the Magistrates Court now does not have jurisdiction over the matter.
   
10. Whether to grant bail or not is a discretion of the Court which it exercised after taking into account the grounds for the application and other factors such as the seriousness of the offence charged, the likelihood of the accused absconding, the likelihood of the interfering with witnesses or the likelihood of committing further offences while out on bail, the principal consideration however is whether the “ accused will attend his trial” as stated by his Lordship Ward CJ in Regina V Kong Ming Khoo, Unreported HCSI CRC NO. 24 of 1991. This principal was applied by his Lordship Kabui J. in Taisia v DPP Criminal Case No. 226 of 2001 in which his Lordship Stated.... “the test to be applied is whether or not is probable the accused will appear in court on the trial date. The test is applied by considering factors such the nature of the allegation against the accused, the nature of evidence supporting the accusation, the seriousness of the penalty that may result upon conviction and the availability of sureties as the case may be”.
    
11. In the present case, the applicant’s uncle Mr. Mathew Natei is not only prepared to stand as surety for the applicant but also to accommodate him in his house at Lengakiki. Mr Natei is also willing to pay a deposit of $1000.00 as a surety to guarantee the applicant’s attendance at his trial.
    
12. Having considered the grounds for this application, the submissions by counsels and that the prosecution does not really opposed to the applicant being released on bail, that there is no evidence of the likelihood of flight risk, I grant the applications and released the applicant on bail but on the following conditions:
    

(1) That the applicant is to reside with his uncle Mathew Natei at his house at Lengakiki,

(2) The applicant to must not leave the Honiara town boundary without leave of the Court,

(3) The applicant must report to the Central Police Station twice a week on Mondays and Fridays between the hours of 8 am and 4.30 pm,

(4) The applicant must not contact or communicate in any way with the victim or the prosecution witnesses,

(5) That Mathew Natei shall stand as surety for the applicant and the applicant shall be released only upon the payment of $1,000.00 by his surety.

(6) The applicant does not commit any offence while on bail.

(7) If the applicant breach any of these conditions, these conditions shall be discharged forthwith and any police officer is authorised to arrest the applicant and taken him back into custody.

THE COURT

Emmanuel Kouhota
Puisne Judge