R v Wagena [2005] SBMC 6; PMC 2783 of 2005 (20 October 2005)

IN THE PRINCIPAL MAGISTRATE’S COURT HELD AT HONIARA
IN THE SOLOMON ISLANDS

Case No 2783/05

R

-v-

GEORGE WAGENA

Before Deputy Chief Magistrate K F Chapman

20 October 2005

Mr Bannister for the DPP
Mr Lawrence for the Defendant

REASON FOR DECISION ON AN APPLICATION FOR BAIL

Introduction

In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria ACJ held at page 3:

‘The common law presumption of innocence is embedded under the Constitution of Solomon Islands and it is done without qualification [...]. Thus prima facie, an accused person is entitled to bail.’ (emphasis added)

In John Mae Jino & John Gwali Ta’ari v R (Unrep. Criminal Appeal Case No. 172 of 1999) Palmer J held at page 1:

‘Bail is a right protected by law (section 106 of the Criminal Procedure Code). The granting of bail by the court however is discretionary. That means it is not to be unreasonably withheld.’

In Wells Street Magistrates’ Court; Ex parte Albanese (1982) 74 CrAppR 180 [[1981] 3 All ER 769; [1981] 3 WLR 694; [1981] CrimLR 771] Ralph Gibson J, delivering the judgment of the Court, commented at page 187:

‘[T]he public duty of the Court is to grant bail unless, inter alia, it considers that there are substantial grounds for believing that the defendant would fail to surrender to custody.’

The onus is therefore on the prosecution to satisfy the Court on the ‘balance of probabilities’ that a defendant should not be granted ‘bail’.

In R v Mackintosh (1983) 76 CrAppR 177 Lawton LJ, delivering the judgment of the Court, commented at page 182:

‘It is important that the police should bear in mind that it is stupid as well as unlawful to keep someone in custody for a minute longer than they should.’

In R v Sanghera [1953] 2 VR 130 the Court held:

It is open to a Court to receive and take into account any relevant evidence, whether admissible under the rules of evidence or not, if it considers the evidence creditable or trustworthy in the circumstances.

If in objecting to the granting of bail, the prosecution is relying on the criminal history of a defendant, it should be handed in writing to the Court, rather than reading it out in open court, see R v Dyson (1944) 29 CrAppR 104.

If a defendant is granted bail, subject to bail conditions, the onus is on the defence to satisfy on the ‘balance of probabilities’ that the defendant:

[i] will not abscond; and

[ii] will comply with such conditions.

Section 5(3) of the Constitution states (in part):

‘Any person who is arrested or detained –

(a) [...]; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the law in force in Solomon Islands,

and who is not released, shall be brought without undue delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.’ (emphasis added)

The Charge

The defendant is charged with attempting to murder his wife. I am also advised he has been charged with criminal trespass although a charge to that effect is not on the file.

The facts alleged

It is alleged the defendant entered the home of the parents of his wife where she was then living. This was at night when his wife and her parents were asleep.

Whilst she was asleep he held her by her neck and squeezed it resulting in blood coming from her mouth and nose.

She struggled and broke free and proceeded to shout and scream waking her parents whereupon the defendant ran away.

Summary of the Prosecution reasons for opposing bail

The prosecution opposes the granting of bail. This is mainly due to the seriousness of the offences and the previous history of the defendant’s violent behaviour towards his wife.

Counsel for the prosecution argued there was a real risk the defendant will re-offend

Summary of the Defence reasons for granting bail

The defendant, a former police officer, is 24 years. He has been in custody since he surrendered himself to the police on 6 August 2005. I am told that during that time he has “sorted himself out”. This is his first bail application, which I am told is partly motivated by the “lock down” conditions presently imposed at Rove Prison.

I am told he is happy to live with his father and his father is prepared for this to happen. He is prepared to under take any bail conditions that may be imposed. There is no prior history of him failing to meet bail conditions.

Counsel for the defendant referred me to a medical certificate outlining the injuries sustained by the wife as a result of the actions of the defendant. I accept that the injuries were not substantial but the certificate indicates the injuries were “consistent with that of strangulated at the neck”. Counsel for the defendant submitted that the evidence of the prosecution in alleging attempted murder was not strong. On what is before me I do not agree. In any event there is clear evidence of a serious assault committed a night in circumstances which are likely to attract a substantial period of imprisonment if the defendant is convicted.

The relevant legal principles

The following factors should be considered when deciding whether to grant ‘bail’:

[i] Whether the defendant will abscond on bail.

In R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991) Ward CJ held at page 3:

‘The principal consideration in all bail applications is whether the accused will attend his trial.’

[ii] The nature of the accusation or ‘seriousness’ of the alleged offence.

See: R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995; Palmer J; at page 1); R v Perfili (Unrep. Criminal Case No. 30 of 1992; Muria CJ; at page 2) & R v Phillips (1947) 32 CrAppR 47.

[iii] The nature of the evidence to be adduced.

[iv] The severity of the punishment which conviction would entail.

In R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991) Ward CJ held at page 3:

‘I must also bear in mind that the nature of the offence and the penalty if convicted raise a prima facie risk the accused may try to avoid the trial.’

[v] Whether the defendant will interfere with prosecution witnesses and police investigation.

In Perfili v R (Unrep. Criminal Case No. 30 of 1992) Palmer PJ stated at pages 3 – 4:

‘Although I am satisfied that if the applicant is released on bail he will not abscond there are other factors that this Court is entitled to consider.

One of these and the main one raised by Prosecution is the possibility of tampering with evidence and interference with prosecution witnesses and investigation.

[...]

[vi] The possibility of a repetition of the offence or of further offences.

See: R v Kong Ming Khoo (Unrep. Criminal Case No. Unknown of 1991; Ward CJ; at page 3).

‘Some crimes are not likely to be repeated pending trial and in those cases there may be no objection to bail; but some are, and house-breaking particularly is a crime which will very probably be repeated if a prisoner is released on bail, especially in the case of a man who has a record for housebreaking such as the applicant had. It is an offence which can be committed with a considerable measure of safety to the person committing it’, see R v Phillips (1947) 32 CrAppR 47 at page 48.

[vii] The length of any delay.

In R v Perfili (Unrep. Criminal Case No. 30 of 1992) Muria ACJ held at page 2:

‘The question of delay in bringing an accused person to trial is a relevant factor to be taken into account in considering bail applications. I feel it is particularly important that the liberty of an accused person must be borne in mind in order to minimize any delay in bringing an accused person to trial.’

In R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995) Palmer J held at page 2:

‘The accused has spent a better part of his time in custody and now that a trial date has been fixed not more than a month away, it needs to be shown that further remand in custody until that time taking all relevant matters into account would be prejudicial to this accused’s interests.’ (emphasis added)

[viii] The family needs of the defendant.

In R v Philip Tagea, Amos Teikagei & Damaris Teikagei (Unrep. Criminal Case No. 14 of 1995) Palmer J held at page 3:

‘It has not been shown that his wife and children urgently need him; that if he is not released on bail that something drastic will happen to them.’

The relevant facts

Whilst the defendant has no history of failing to attend Court it is significant he is said to have committed these offences whilst a term of imprisonment imposed upon him was currently suspended.

It is apparent from the nature of the offences that they are serious and if convicted the defendant will no doubt face a significant term of imprisonment.

On what is before me I am not persuade the case for the prosecution is weak. It is true that the injuries sustained by the defendant were not severe but I do not accept that one must draw the inference from the medical certificate as suggested.

One would expect that the major witness for the prosecution would be the defendant’s wife. He has a history of being violent towards her. On the facts before me it is very possible that behaviour will continue. Counsel for the defendant made the bald statement that the time in prison had cause the defendant to reflect and he has mended his ways. That was not supported by any evidence.

The defendant was before the Court on 20/10/04 charged with assault occasioning bodily harm. His wife was the victim. Apparently that charge was reduced to common assault and the defendant was given a sentence of 28 days imprisonment suspended for 1 year. In less than 10 months it is alleged he entered the house of his parents-in-law at night. While the household lay asleep he is said to have committed this offence. If the facts are proved at trial it was an act without provocation whilst his wife was living under the protection of her parents' home.

Previously the Court treated the defendant leniently and placed him on trust. What confidence can the Court have that the defendant will honour any bail conditions imposed upon him given he did not obey a previous order of the Court? It is suggested that the defendant will live with his parents who will keep an eye on him. He lived with them when this offence is said to have happened.

In my view there is a high possibility there will be a repetition of the offence that will also involve an interference with a significant witness. There is no evidence before me of the likely delay in brining this matter to trial nor is there any evidence about family needs.

Conclusion

Having considered all of the relevant factors I consider bail should be refused.