Regina v Tufu [2016] SBHC 58; HCSI-CRC 491 of 2015 (6 May 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

CRC. No. 491 of 2015

Regina v. Kidoe Tufu

Date of hearing: 5^th May 2016
Date of Judgment: 6^th May 2016

Kesaka A for the Applicant
Ramosaea S for the Crown/Respondent

RULING ON BAIL APPLICATION

Kouhota PJ:

Introduction

1. The applicant, Kidoe Tufu, was charged with Murder contrary to section 200 of the Penal Code. It was alleged that on the 12^th June 2015 did murder one Clement Levara. The applicant comes to this Court and applies to be released on bail pursuant to section 106(3) of the Criminal Procedure Code (CPC).
   
2. The applicant had been remanded in custody since his arrest and on the 17^th March 2016 was committed for trial in the High Court by the Magistrate’s Court. He comes to this Court seeking to be released on bail to await his trial. The Court is yet to receive the documents regarding the committal proceeding hence I had not had the privilege of reading the statement of witnesses. However, the brief facts as submitted by the prosecution were that the accused attacked the deceased with an iron bar shape like a knife and struck the deceased on the head several times. The deceased died next day as a result of injuries he received from the strikes.
   
3. There are three sworn statements were filed in support of the application; one by the applicant himself, one by his wife, Jude Kate Inapi and one by his uncle, Roy Keleni. The sworn statement by the applicant stated that the reason for applying for bail is to enable him to find work to support his family. The sworn statements of his wife and his uncle confirms that they would assist the applicant by accommodating him and assist in ensuring he comply with any bail condition that may be imposed if he is granted bail, His uncle Ray Keleni is also willing to stand as surety for him and to provide accommodation for him.
   

Opposition to bail

4. 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 one of the Police Investigation Officer of the alleged murder case, police constable Edward Vilaka
   
   • (1) Constable Vilaka stated in his sworn statement among other things that when they arrived in Mono to investigate the alleged murder, there were resistance from what he described as anti-loggers who are the same group as the applicant.
     

(2) That police is yet to arrest a co-suspect of the alleged murder. That there are threats been made by the co-accused and anti-loggers in Mono up to this day and that there is information that the applicant if released will return to Mono to joined the anti-loggers to threaten police witnesses.

The Law on Bail

5. 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;

‘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.’

6. 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.
   
7. By virtue of section 106(3) of the Criminal Procedure Code (CPC), the High Court does have the discretion to grant bail. The Court may exercise that discretion 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 applicant interfering with witnesses or the likelihood of committing further offences while out on bail.
   
   8. In Kelesiwasi V Regina HC Criminal Case No.024 of 2004, Palmer CJ, stated 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 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”.
      
9. The principal consideration when considering whether to grant bail or not 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”.
   

In the present case the prosecution opposed bail to be granted on the basis that the applicant is charged with a serious offence, that evidence against the accused is strong, that the applicant may abscond, he may re-offend or interfere with the administration of justice. Counsel for the prosecution referred the court to the case of Regina v Tonowane [2005] SBHC 191; HCSI-CRC 055 of 2005 where bail was refused because the applicant had not shown any exceptional circumstances for the court to exercise its discretion to grant bail.

I am inclined to accept the Crown proposition that there is a presumption against bail where an accused is charged with murder. I am of the view that in Murder charges, bail should only be granted in exceptional circumstances, see Regina v Kong Ming Khoo - CRC No. 15 of 1991, in which Ward CJ held that whilst bail may be considered for Murder charges, it may be granted only in exceptional circumstances.

10. There is no definition of what constitute exceptional circumstances but it my view, it means that a person charged with murder has to show very good reasons or that something unusual why he should be granted bail. The issue of exceptional circumstances was considered 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.
    
11. In the present case, the reason why the applicant wants to be released on bail was to find work to support his family. The sworn statement of applicant’s wife shows that she is in good employment hence the ground submitted by the applicant is unconvincing and does not amount to exceptional circumstances.
    
12. 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.
    
13. I had considered the sworn statements filed in support of this application and the submission of counsel for the applicant and found that grounds submitted by the applicant does not even amount to a good ground to be released on bail especially when he is charged with murder. The applicant does not show any exceptional circumstances that warrant he should be released on bail.
    
14. The sworn statement of Constable Vilaka shows that the tension is still high on the ground in Mono. Taking that into account and all the circumstances of this case, I am satisfied there is a real likelihood the applicant will interfere with the prosecutions witnesses or may commit further offences if he is released on bail or he may even abscond, he comes from the two of most remote places in Solomon Islands, Tikopia and Mono so the likelihood of absconding is not a remote possibility. While the Court may imposed strict bail conditions, they are difficult to monitor and policed hence they could easily be breached. The application for bail is refused.
    

The Court

Emmanuel Kouhota

Puisne Judge