Regina v Hare [2015] SBMC 12; Criminal Case 399 of 2015 (23 November 2015)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 399 of 2015

REGINA

-v-

PENROSE JUNIOR HARE First Applicant/Defendant
MATHEW BASI Second Applicant/Defendant
ONORIO BASI Third Applicant/Defendant

Prosecution: Mr. Lyndon Adifaka of Police Prosecutions Office
Defence: Mr. Rodgers Tovosia of DNS & PARTNERS LAW FIRM
Hearing: November 20, 2015
Ruling: November 23, 2015

RULING ON BAIL

1. The three Applicants/Defendants were charged with one count of arson contrary to section 319 of the Penal Code. They were initially arrested and brought to this Court^[1] on 30^th of April 2015. On that occasion, counsel Mr. Tovosia who appeared for them applied for bail and they were granted bail by Magistrate Ms. Lelapitu with the following bail conditions:
   
   • (a) If the abovenamed Junior Penrose Hare, Mathew Basi and OnorioBasi appear before this Court on the 14^th of May 2015 at 9:00am for mention to answer a charge contrary to 319 of the Penal Code then the said recognizance shall be void, and otherwise it shall be inforce;
   • (b) Not to interfere with police witnesses;
   • (c) Accused to live with surety at Henderson;
   • (d) To report to Henderson Police Station twice a week, every Mondays and Fridays between 8:00am in the morning and 5:00pm in the evening;
   • (e) Not to leave Honiara boundary without the leave of the Court;
   • (f) Not to re-offend whilst on bail and
   • (g) Must attend Court on adjourn dates.
     
2. I noted that that they were each released on cash bail of $500 on that occasion as evidenced by two receipts attached to the Court’s file. Whether it is part of the bail conditions is silent on the record.
   
3. This is the second application for bail after they were rearrested and remanded on 6^th of November 2015 pursuant to a warrant of arrest issued on 9^th of July 2015 for their failure to attend to Court as required under condition (g) of their bail conditions.
   
4. The Applicants/Defendants through their lawyer now reapply to this Court that they are entitled to bail under section 5 and 10 of the Constitution of Solomon Islands. He urged this Court to grant them bail under section 106 (1) of the Criminal Procedure Code because they have no flight risk, no risk of reoffending and no risk of interference with prosecution witnesses. He stated that all of them voluntarily turned up to police when police came to Avuavu to escort them to Honiara. He also stated that they had been appearing on 8 occasions without a lawyer and thus, resulting in the matter not progressing at all before this Court.
   
5. The Prosecution on the other hand objected to the application relying on the breach of some of their bail conditions. Mr. Adifaka in his verbal submission submitted that they had been given the benefit of bail at the first place with strict bail conditions but failed to comply with some of those conditions. For this reason, as gleaned from his submission, they are not worthy candidates if the Court grants them bail for the second time.
   
6. It is trite law that right to bail for accused persons is protected under section 5 and 10 of the Constitution. In other words, prima facie, an accused person is entitled to bail. This is premised on the basis that an accused is presumed to be innocent until proven guilty by the Court. However, unlike right to life for example, it is not automatic but conditional and may be refused on certain situations. The Court has the unfettered discretion whether or not to grant bail.It is for the prosecution to show on sufficient and proper information before the court that the circumstances of the offence or the circumstances of the offender warrant him/them remand in custody.^[2]
   
7. This is a bail application not in the first instance. Hence, the issue for this case is simple, that is whether or not the Court in its discretion would grant the three Applicants/Defendants bail for the second time given that they had breached two of their bail conditions (e) and (g).
   
8. In this case, there is no issue that all the Applicants/Defendants had been granted bail on 30^th of April 2015 the day they first appeared in Court.They were represented by a lawyer on that occasion. Their bail conditions were very clear and written in plain simple English. Since they were represented by a lawyer, it is also expected that they ought to be advised by their lawyer of their bail conditions as well. Therefore, it is futile to say that they do not understand their bail conditions at the first place.
   
9. There is also no issue that they were rearrested by police at Avuavu area, a location clearly outside and far from Honiara town.
   
10. I have read the Court’s record on the 9^th of July 2015, the date when the warrant of arrest was issued against them for their failure to turn up in Court. The record shows that their names were called by a Police Prosecutor Mr. Maelanga but “no appearance”. This means that they did not physically present at the Central Magistrates Court’s area when their names were called despite being clearly advised by the Court on 2^nd of July 2015 of the need for them to attend on this date. The explanation submitted by their lawyer was that they did not see their names on the Court’s list so they left the Court’s area on that day.
    
11. I accept this explanation of the basis that the list did not contain their names and perhaps, this must be the reason why they must have left the Court’s area before their names were called. However, this matter did not end up there. The record shows that the warrant of arrest was issued but lie in the file until the next mention date which was 23^rdof July 2015 for review of the warrant of arrest. On this occasion, they failed to appear again and resulted in the issuance of the warrant of arrest as ordered by the Court on the previous occasion. This matter thereafter continued to be mentioned as review of warrant of arrest matter for 4 occasions until they were rearrested and remanded in custody on 6^th of November 2015.
    
12. That is a period of more than 3 months they did not appear in Court. There isn’t any evidence that they took any step to enquire with the Central Magistrates Court about when they would appear back in Court. If they enquire at the Central Magistrates Court Registry section or with any Police Prosecutor here at the Central Magistrates Court during official working days, they would be assisted or advised about their future Court dates. If they have done so, they would appear in early August or Septemberor end of October. With regret, nothing has been done. To at least comeon one occasion to the Central Magistrates Court from Henderson area as their residential area whilst on bail is not that difficult and expensive. Since 23^rd of July to end of early November 2015, I find it very unusual why they didn’t even contact the Central Magistrates Court or the Police about their future court appearances. This period of more than 3 months is too sufficient for them if they were in fact residing at Henderson area. What turned out as submitted by their lawyer was that they had left Honiara to their villages in the Guadalcanal Province. Are they allowed by Court to go back to their villages? The record did not reflect and hence, thisis a clear breach of conditions (e) and (g) of their bail conditions. In reality, they may even breach their reporting condition to Henderson Police Station as well whilst they were at their home villages.
    
13. This case demonstrated a case which the Applicants/Defendants had been given privilege on bail whilst their matter is still before the Court. They were afforded that right to bail with simple bail conditions to follow at the first place. They chose not to follow but instead escaped out of Honiara until rearrested by Police.
    
14. It was submittedthat they had been appearing without any lawyer for 8 occasions whilst on bail. That submission is quite misleading. I had perused the file and noted they only appeared on 4 occasions before this Court without a lawyer. These occasions were: 14/05/2015, 28/05/2015, 18/06/2015 and 2/07/2015. The period followed thereafter to 6^th of November 2015 showed that they did not appear anymore. What transpired afterwards was this matter was mentioned as review of the warrant of arrest.
    
15. Whilst I sympathize with them for not having any legal representation, they had the benefit of the freedom of movement in Honiara town compared to accused persons who are kept in custody. More time was afforded either to find a government or a private lawyer. To simply go to the Public Solicitors Office for one or two occasions is not enough but rather more frequent visits and requesting the Office on daily basis for legal representation is what the Court expects because it shows seriousness of wanting legal representation. To expect a lawyer to find you from your comfort zone in Honiara when you do not take the initiative is unrealistic and hopeless. It would be even hard if you are in the village like in this case.
    
16. On that same note, may I point it here that at present, there are a lot of defendants now before this Court without any legal representations despite several requests to the Public Solicitors Office. This is a worrying sign taking into account the limited number of lawyers working for that Office at present. We have to be realistic with the current service provided by our government defence lawyers otherwise the only resort is to find a private lawyer or else face the reality of having to defend oneself in Court. This should be also a warning message to the public that it is important to make wise decision before doing thing because of the consequences that may flow from it.
    
17. It was submitted that they had availed themselves and cooperated with police when police went to escort them to Honiara. This does not change the fact that they had already breached their bail conditions. An order from the Court which should be followed by them at all times. It was further submitted that their case is one which depends on circumstantial evidence. In my view, this is not the time to determine the veracity of the various statements made; that will occur at trial. Prosecution’s evidence at bail applications is to be taken at its highest, which in this case cannot be said to be too weak.
    
18. In R v Kong Ming Khoo^[3], Ward CJ stated that“The principal consideration in all bail applications is whether the accused will attend his trial”.^[4]Given that they had escaped out of Honiara without the consent of the Court and the enormous time being wasted to progress this case which attributed mainly by their own ignorant conduct. In my view, the risk of flight had already been established despite I am satisfied that there is no likelihood of reoffending and interference with prosecution witnesses. If police did not go to Avuavu to look for them, the review of the warrant of arrest will continue for an indefinite period and the status of the case will remain the same. Therefore, I don’t think it will be in the interest of justice to afford them again that right to bail because they had abused that privilege whilst on bail. They need to come with cleans hand before this Court. A further granting of it would otherwise be seen as a mockery to the judicial system having to be dictated by Accused persons own conveniences. This Court must be vigilant in its discretion on whether or not to grant bail and this case is one which bail is refused.
    
19. Consequent of my refusal to grant them bail, I order that their respective cash bail is accordingly forfeited to the Crown.
    

....................................
THE COURT

Augustine Aulanga (Mr)

(Magistrate of the First Class)

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^[1] The Central Magistrate Court
^[2]See Kelesiwai v R [2004] SBHC 13; HC-CRC 024 of 2004 (11 February 2004), R v Perfili(Unrep. Criminal Case No 30 of 1992), John Mae Jino& John Gwali Ta ari v R (Unrep. Criminal Appeal Case No. 72 of 1999)
^[3](Unrep. Criminal Case of 1991)
^[4] At page 3