Regina v Ete [2016] SBHC 46; HCSI-CRC 110 of 2016 (12 April 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

CRC. No. 110 of 2016

Regina

v.

Jeeney Robert Ete

Date of hearing: 8th April 2016
Date of Judgment: 12th April 2016

Dalipanda for the Crown/Respondent
Mr. Kesaka for the Applicant

RULING ON BAIL APPLICATION

Kouhota PJ:

Introduction

1. This is an application for bail by the applicant Mr Jeeney Robert Ete, pursuant to section 106(3) of the Criminal Procedure Code (CPC). The applicant was charged with Murder contrary to section 200 of the Penal Code. It was alleged that between 17^th and 18^th August 2015, did murder one Wilson Kafo.
   
2. The applicant had been remanded in custody since November 2015. There are no documents before the Court to show if the matter has gone through preliminary inquiry at the Magistrates Court. However, counsel for the applicant informed the Court that a long form Preliminary inquiry into the matter will take place this month.
   
3. There are two sworn statements filed in support of the application; one by the accused/applicant and one by his daughter, Ruscilla Ete. I had read the sworn statements and heard the submission of counsel for the applicant and it seem the main reason stated in support of the application is the difficulty the applicant and family are facing in managing their motel in Auki and the effect it has or will have on the welfare of the family.
   
4. Counsel submits that the applicant’s brother is willing to stand as surety for him and if granted bail, he will reside with him in Honiara and would not go to Auki hence he would not interfere with the witnesses. The Court has allow counsel to file after the hearing of this application sworn statement from the applicant’s brother to confirm this but until now, no sworn statement has been filed. Counsel for the applicant submits that the motel has run down, is getting into arrears with the ANZ Bank and that foreclosure may be imminent. The situation affecting the applicant motel business and family he submits amounts to exceptional circumstances.

Opposition to bail

5. The Crown opposed bail and submits that the applicant should not be granted bail. Crown has filed a sworn statement in support of their opposition to bail. The sworn statement is by the investigation officer of the alleged murder case, Staff Sgt.631 Luke Kubalua.
   
   • (1) S/Sgt. Kubalua stated in his sworn statement among other things stated that the relatives of the applicant refused to reconcile with deceased relatives hence there is no reconciliation between the parties until now.
     

(2) That sometimes after the incident the applicant went and provoked the deceased relatives which resulted in the applicant car been damaged by the deceased relatives.

(3) That there is a high possibility that the applicant will interfere with prosecution witnesses who are mostly females and are very close associate of the applicant and that one of them, the main prosecution witness was made pregnant by the applicant hence if the applicant is released on bail, there is a high possibility that he will interfere with the witnesses.

The Law on Bail

6. 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
   
7. 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 inter-alia states that;
   
8. 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.
   
9. Section 106 (3) of the CPC gives the High Court the discretion to direct in any case including Murder or Treason that any person be admitted to bail or that bail required by a Magistrate’s Court or police officer be reduced.
   
10. In the present case, the applicant was charged with Murder but 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.15 of 1991. The principle was applied and elaborated on by his Lordship Kabui J. in Taisia v DPP Criminal Case No. 266 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 preliminary inquiry is yet to take place and the applicant is yet to be committed for trial before this Court. The Court therefore does not have the privilege of examining the witness statements. The Crown, however, as part of its submission in opposing this application filed a brief of an eye witness Ellen Futaiala’s statement given to the police. The brief clearly and directly implicated the applicant in the death of the deceased. It also show that the applicant is her former lover and must have known that the deceased was having an affair with the witness and that on the night of the alleged murder, the applicant came to the beach and saw the witness, his ex-lover, drinking with the deceased so he attacked him. The prosecution therefore submit that it has a very strong case against the applicant.
    
12. Counsel for the prosecution referred the Court to the case of Kelesiwasi Taisia V Regina Criminal Case No. 266 of 2001, where it was stated by Kabui J, that “Bail is a right protected by the Constitution section 5 (2). However, there is a discretion regarding granting of bail. It is not automatic. It may be refused on certain situations. It is for the prosecution to show sufficient and proper information before the Court that circumstances of the offence and/or the circumstances of the offender warrant the accused’s remand in custody.” His Lordship at page 2 went on to say “The ultimate question whether bail should be refused or not in this case boils down to a careful balancing exercise by this Court on whether there is a possibility of absconding, interference with the course of justice and the likelihood of the commission of further offences”.
    
13. In Regina v Kong Ming Khoo - CRC No. 15 of 1991, it was held that whilst bail may be considered for Murder charges, it may be granted only in exceptional circumstances.
    
14. On the issue of consideration of exceptional circumstances, In Sisifu v Regina [2003] SBHC 119; HC CRC 128 OF 2003, HIS Lordship Palmer J, as he then was, at page 3 stated “I would agree with counsel’s submission that the exceptional circumstances referred to in the case authorities pertain to the crime and the circumstances of the accused. These must be necessary include the usual considerations the Court is required to consider on whether bail should be granted or not. Regrettably, it does not include the personal circumstances, including the hardship that his family may be facing as a result of his being on remanded. Whilst I sympathise with the hardships this applicant’s family may be going through as a result of his confinement on remand, they do not constitute exceptional reasons for bail to be granted. His lordship refused to grant bail in that case. The grounds relied on by this applicant in support of his application were similar to the grounds relied on by Sisifu.
    
15. In the present case, the applicant was charged with Murder hence in considering whether to grant bail or not, the Court must be satisfied that the applicant has shown that there are exceptional circumstances which warrant bail to be granted to him.
    
16. I had considered the sworn statements filed in support of this application and the submission of counsel for the applicant and found that the main ground advanced in the sworn statements and the counsel’s submission in support of this application is the difficulty in managing the applicant’s motel in Auki and the effect it is having or may have on his family. Could that be considered as an exceptional circumstance? I am afraid, the answer is, No. The applicant does not show any exceptional circumstances that warrant he should be released on bail. On the contrary, based on the materials before the Court and taking into account all the circumstances of this case, I am satisfied there is a real likelihood of the applicant interfering with the prosecutions witnesses if he is released on bail even if he remain in Honiara. His close association with the witnesses and his special relationship with the eye witness Ellen Futaiala makes it a real likelihood.
    
17. The application for bail is refused.
    

The Court

Emmanuel Kouhota
Puisne Judge