R v Kaneka [2018] SBHC 97; HCSI-CRC 112 of 2018 (26 November 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kaneka
Citation:
Date of decision:	26 November 2018
Parties:	Regina v Roger Kaneka
Date of hearing:	22 November 2018
Court file number(s):	CRC 112 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina PJ
On appeal from:
Order:	The application for the bail is refused
Representation:	Ms F. Fakarii for the Prosecution Mr B. Ifuto’o for the Applicant/Defendant
Catchwords:
Words and phrases:
Legislation cited:
Cases cited:	Bartlett v Regina, Regina v Oso

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 112 of 2018

REGINA

v

ROGER KANEKA

Date of Hearing: 22 November 2018
Date of Judgment: 26 November 2018

Ms F. Fakarii for the Prosecution
Mr B. Ifuto’o for the Applicant/Defendant

RULING ON THE BAIL APPLICATION

Introduction

Maina PJ: This is an application for bail by the accused Roger Kaneka who has been remanded in custody on the charge of sexual intercourse with a child under 15 years and indecent act.

Earlier at the lower court on 26^th January 2018 or after the committal proceeding of the accused to the High Court, an application for bail was made to the court but the Chief Magistrate refused to grant bail on the basis that the accused was not able to provide a suitable surety.

Now with this application, as noted from the Defence Counsel’s submission and affidavit by the accused, he applies for bail on own recognizance of $1,000.00. He seeks that if he is granted a bail he will reside with his uncle Kaio Tawotawo at Babanga Island and report to Police at Gizo as required.

Defence Counsel submitted that this case cannot be listed for hearing soon because of the process with the case. It will take time and would not be fair to his client. With why the accused cannot provide surety for this application, it is because the surety cannot afford the cash money for the bail.

At the lower court when a bail application was made, the Prosecution’s position was that if the accused secured a surety there would not be any objection to the bail. And with this application now before this court, they still maintain the same position for the accused to secure a surety.

This is not an appeal from lower court for refusing the bail and as such the ruling of the lower court is sustained as with the committal process to the High Court, thus this is a fresh application for bail.

The decision whether to grant bail is a matter within the discretion of the court and by practice the court is required to consider whether the circumstances of the offence and offender require that an accused be remanded in custody. There are a number of factors relevant to the grant of bail as the protection of the right to personal liberty contained in section 5 of the Constitution, the nature and circumstances of the offence charged, including the possibility of a sentence of imprisonment and others. For this case the accused is charged with a serious offence, if found guilty is liable to be sentence to life imprisonment.

As a fresh application it is now for the accused to or must convince the court that the circumstances have been changed, fact were omitted from the previous bail application or new facts have caused or changed the circumstances to occur and to justify a fresh application. And this has been the position of the court and emphasized in cases of Bartlett v Regina (2006) SBHC 4 and Regina v Oso (2013) SBHC 42.

I have examined the Defence Counsel’s submission and affidavit by the accused with the reasons given by the Chief Magistrate when she refused the earlier application for bail before her and noted that the circumstances has not changed.

With this accused’s application for bail he does not disclose by evidence or show to this court that the circumstance has changed than or use the time to progress this case before the court as new ground which I think is lame or would not attract any consideration at this stage. To consider a bail for the accused, it is my view too that surety should still be available as an appropriate consideration for the bail in this accused’s case.

The application for the bail is refused.

THE COURT
......................................................
Justice Leonard R Maina
Puisne Judge