Regina v Deodore [2016] SBMC 1; Criminal Case 15 of 2016 (8 February 2016)

IN THE CENTRAL MAGISTRATES COURT )

OF SOLOMON ISLANDS AT HONIARA )

(Criminal Jurisdiction)

Criminal Case No. 15 of 2016

REGINA

-v-

BILLY DEODORE - FIRST APPLICANT/DEFENDANT

MILTON GWALIASI - SECOND APPLICANT/DEFENDANT

Prosecution: Mr. Lyndon Adifaka of Police Prosecutions Office

Defence: Mr. George Gray of Public Solicitors Office

Hearing: February 4, 2016

Ruling: February 8, 2016

RULING ON BAIL

1. This is a second application for bail for Billy Deodore and Milton Gwaliasi after their first bail application was refusedbefore Principal Edwin Saramo on 21^st of January 2016. Both of them are co-accused to Ben Farobo, Stanley Ramo, Junior David Faiga, Junior Eric Nathaniel, who together charged with armed robbery contrary to section 293 (1) (a) of the Penal Code.
2. Since this is the second time they apply for bail, the Court must apply the principles regarding to subsequent bail application by the same person or persons whose previous bail application had been refused.In Bartlett v R^[1] (referred to in Gwao v R^[2]), Apaniai J, when referred to his Lordship, Kabui, J said:

"The rule of practice is that I cannot re-open the findings in the three previous bail applications unless by way of an appeal which in this jurisdiction is not one that is available to an accused whose bail application has been refused by the High Court (see R v Bartlett, Appeal No. 20 of 2004). There are however two exceptions to this rule of practice. First is that a subsequent bail application may raise matof fact that hhat had been omitted in a previous bail application. Second is where new facts have caused changed circumstances to occur so that a fresh bail application is justified. (See R v ngham Justices ex parte Dave Davies [1981] QB 38)".^[3]

3. In R v Charles KekuChivili, Apaniai J stated:

"Proof of a material change in circumstances, or proof of new facts, only enables the court to hear the fresh application. The applicant must still satisfy the court that the changed circumstances or the new facts justify the granting of bail. The question (in this application), therefore, is whether there has been a material change in the circumstances of the accused or of the case since the hearing of the 1st application, and/or whether new material, which was not before the court at the hearing of the 1st application, has emerged so as to justify this second attempt."^[4]

4. These two case authorities clearly stated that the law requires that to qualify for another attempt at bail, the applicant must first satisfy the court, either that there is a material change in the circumstances of the accused or of the case since the hearing of the previous application, or, that new material has emerged which was not before the court at the time of hearing of the previous application. If the Court is satisfied on that to hear the application, the next step is for the applicant to further satisfy the court that the change in circumstance or the new fact justifies the granting of bail. These are the two principal considerations for the Court to consider in any subsequent bail application.
   
5. Counsel for the Applicants in this case Mr. Gray made verbal submissions on right to bail, presumption of innocence, seriousness of the offending, delay in police investigation, family ties and responsibilities, availability of sureties, strength of prosecution case and the fact that one of the accused persons Mr. Rurai has been arrested by police. He further submitted that his apprehension is considered as a change in the circumstances regarding their case since the first hearing of bail. For Billy Deodore, he referred to three sworn statements of these persons-Janet Deli, LorinaHanikouna and Fr. Stephen Posirou to support his application. For Milton Gwaliasi, he referred to two sworn statements of Ben Buga and JackvaggLaeta.
   
6. I noted that those sworn statements referred to had been used during the first bail application. Again they were reused for this subsequent hearing with the same set of information. The submission regarding their proposed regular reporting to White River and Kukum Police Stations were also raised and already considered during the first bail hearing. With respect, it seemed that counsel simply reintroduced what had already been submitted and ruled on by Principal Magistrate Saramo.
   
7. The only material in my view is a new material not raised in the first hearing is the apprehension of their so-called ring leader Mr. Richard Rurai. The question now is whether the apprehension of Rurai is sufficient ground to grant bail for the two accused persons who were accused of armed robbery.
   
8. In my view that information on its face value is not sufficient ground to release the two accused persons who were accused of armed robbery. To use an apprehension of a co-accused as a ground to release an accused or accused persons on bail especially in armed robbery cases does not make sense and against the interest of justice when considering whether or not to grant bail.It would be a change of circumstance if they are unfit to remand in custody due to health reasons, undue delay to have their matters tried in Court within a reasonable time or the need for them to take care of their family members who depend entirely on them due to critical health reasons.The competing nature of the right to bail and interest of justice has to be carefully considered before granting of bail. This has been discussed elaborately in Hurnam v State of Mauritus^[5], where Lord Bingham of Cornhill found that:

"the courts are routinely called upon to consider whether an unconvicted suspect or defendant should be released on bail, subject to condition, pending his trial. Such decisions very often raise questions of importance to both to the individual suspect or defendant and to the community as a whole. The interest of the individual is of course to remain at liberty, unless or until he is convicted of a crime sufficiently serious to justify depriving him of his liberty. Any loss of liberty before that time, particularly if he is acquitted or never tried, will inevitably prejudice him and, in many cases, his livelihood and his family. But the community has a countervailing interest, in seeking to ensure that the course of justice is not thwarted by the flight of the suspect or defendant or perverted by his interference with witnesses or evidence and that he does not take advantage of the inevitable delay before trial to commit further offence"^[6]. (Underlined mine)

9. Except for the apprehension of Rurai by police, his Worship already considered all the matters raised by counsel at the hearing of the first application and had made his ruling which I do not have the jurisdiction to review. For this case, nothing has been shown that would justify the hearing of this application for the granting of bail as sought in the application. Hence, I must refuse bail and dismiss the application.
   
10. The applicants have the right to invoke the jurisdiction of the High Court to review this ruling pursuant to section 106 (3) of the Criminal Procedure Code.
    
    

....................................

THE COURT

Augustine Aulanga (Mr)

(Magistrate of the First Class)

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^[1] [2006] SBHC 4
^[2] [2011] SBHC 54
^[3] At page 2
^[4] At page 2
^[5]( 2006) 1 WLR 859
^[6] At paragraph 19