Regina v Deodore [2016] SBMC 3; Criminal Case 15 of 2016 (25 February 2016)

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

Criminal Case No. 15 of 2016

REGINA

-v-

BILLY DEODORE - APPLICANT/DEFENDANT

Prosecution: Mr. Lyndon Adifaka of Police Prosecutions Office
Defence: Mr. George Gray of Public Solicitors Office
Hearing: February 23, 2016
Ruling: February 25, 2016

RULING ON BAIL

1. On 8^th of February 2016, I refused bail for the applicant in this case. The basis for my refusal to grant bail is the applicant did not demonstrate any material change of circumstanceseither to him or the case, to warrant the Court to grant him bail after his first application was refused. Now this is his third time he applies for bail.
   
2. In my previous ruling, I referred to High Court cases of Regina v Gwao^[1] and Regina v Chivili^[2]regarding the law for subsequent bail application by the same applicant. In summary, those cases have made it clear that the Court can only hear and grant bail in a subsequent bail applicant if there is a material change of circumstances to the applicant or the case itself. Otherwise, the obvious logic behind is simple, that is, if the same Court continues to rehear the bail, it will act an appeal Court reviewing its own decision or an abuse of Court process. This Court must advocate these principles whichI am bound to follow for purposes of this hearing. I now turn to this application.
   
3. The applicant has filed two sworn statements to support his application. One from LorinaHanikouna,being his elder sister and another from Fr. Stephen Posirou. The sworn statement of Fr. Stephen Posirou confirmed the death of the applicant’s father while Lorina’s sworn statement apart from confirming the death of their father, revealed, the need for the applicant to attend to their family to discuss issues relating to land matters, traditional rights and family matters following the death of their father.
   
4. As expected, counsel for the applicant submitted that the change in the circumstances relied on concerns the applicant and not the case itself. He submitted for this Court to consider the fact that his father had died and the need for him to attend to his family to discuss issues relating to land matters, traditional rights and family matters were the change of circumstances of the applicant and therefore, he should be granted bail
   
5. In this application, the question for the Court to decide is whether following the death of his father and the need for him to attend to family duties and responsibilities especially with land and traditional matters constitute a material change of circumstances to the applicant to justify the review of my earlier decision.
   
6. The grounds relied on in this case are not only unfortunate but unique. Unfortunate in the sense that they relate to the reality in life encountered by the applicant and his family on a personal level.Also, due to the absence of a statutory legislation for bail in Solomon Islands from the view point of our legal system. I hope that in a near future, we should have our own legislation for bail to provide clear guidelines for the Court to follow when considering bail like in this case. The endless streams of bail cases flooding this Court are reflective of the need to have our own legislation for bail since right to bail is protected in our national Constitution.
   
7. On the other hand, it is unique in the sense that I am unable to find any case authority that releases a person on bail in subsequent bail application on grounds of a death of a family member. There were instances^[3] in the past where the Court releases an accused not on bail but only on special permission for limited hours only to attend to funeral of a close family under escort of Police or Correctional Services. I think part of that difficulty is why both the prosecution and defence did not assist the Court on any authority on point. However, the Court would be very much assisted in future hearings of this type of case if there is any authority unknown at present either in or outside of our jurisdiction.
   
8. As such, the Court has to look at caselaws from in and outside of our jurisdiction that deal with the question of whether the Court should grant bail for subsequent bail application on the grounds of change of circumstances relating to the applicant himself. This will assist the Court to ascertain whether the grounds advanced by the applicant in the present case are sufficient to warrant the grant of bail.
   
9. Ina case of Veyagavi v State^[4], the accused was charged with aggravated robbery. He applied for bail after his first bail was refused on the grounds that he has a family and a 3 months old baby to look after. In that case, the Court refused to grant him bail because there was no change of circumstances to justify the Court to review its earlier decision as required under section 30 (7) of the Fiji Bail Act.
   
10. In Uriap v State,^[5] the accused who was charged with series of fraud offences appealed against the decision of the National Court of Papua New Guinea for refusing to grant him bail in his second bail application. In his first application for bail, he used family welfare, delay before trial and business interest but was refused by the Court. In his second bail application, he used his critical health condition as suffering from two diseases namely hypertension and severe lung disease as his ground for seeking bail. The Court refused his bail because of unsatisfactory medial report produced by the Medical Doctor. The Supreme Court dismissed his appeal and confirmed the decision of the lower Court. The Court was of the view that despite the accused purported critical health condition, his medical report was not convincing to warrant his release on bail.
    
11. In another Papua New Guinea case of Smedleyi, Re Bail Act^[6], the accused applied for bail to attend to his mother’s funeral in Australia. He further supported that ground by proposing K30,000 by his guarantor and argued that these factors constitute change of circumstances to his case and Court should grant him permission to attend to the funeral. The Court refused his application and held that these grounds were not change of circumstances in order for the Court to grant him bail.
    
12. In Regina vGwao^[7] the accused who was a co-accused to a murder charge applied for bail for the second time. Amongst other ground, he raised a ground of having multiple sureties to convince the Court to consider that as his change of circumstances. The Court refused the application and said that providing sureties to attend trial is only one factor for consideration.
    
13. In Susan Tamana v R,^[8]CJ Muriastated: “Unfortunately, for the applicant, attending to family duties and problems do not constitute circumstances of the case so as to justify granting of bail pending appeal.” ^[9]Even though this ruling was premised on bail pending appeal but the principal is of equal application. That is - family problems, or duties, does not constitute exceptional circumstances to justify granting of bail in cases where bail was refused at the first hearing.
    
14. These case laws demonstrate the position of the Courts from different jurisdictions when considering the issue of change of circumstances of the accused when considering whether or to grant bail when it was previously refused. In Fiji, the Courts have clearly stated that grounds of family duty and responsibility even if the applicant has a small child does not constitute change of circumstances that would allow the Court to grant bail in subsequent bail hearing. The position of Papua New Guinea seems more stringent that even grounds of health conditions and attending of funeral do not constitute change of circumstances to grant bail. In Solomon Islands as stated by former Chief Justice John Muria, the grounds of social obligations and family responsibilities do not constitute change of circumstances personal to the accused, a position akin to Fiji.
    
15. The grounds relied on in the present cases almost resembles the grounds advanced in the Smedleyi’s case.However, in Smedley’s case, the grounds advanced was more convincing to the grounds by the applicant in the present case. That is the applicant was very desperate to attend to his mother’s funeral yet,it was refused.
    
16. In this present case, I am urged to consider that due to the death of the accused father on 20^th of February 2016, his circumstance now changed and he should be released on bail. Further, I am urged to release him on bail so that he could attend to his family to discuss issues relating to land, traditional rights and family matters.
    
17. Whilst I sympathised with the applicant, unfortunately, his genuine application was made at a wrong time. His application would make sense if he had applied and advanced that ground for the need for him to take care of his father due to health reasons or old age in his earlier bail applications. I think the logic for that is obvious because of the need to take care of our love ones since that opportunityonly come once. This ground was recognised in Regina v Toata^[10] where the applicant was granted bail to look after his father who was terminally ill with cancer and was given palliative care at home. In my view, the applicant if he is really concern about the health or welfare of his father should lodge an urgent bail application prior to his death. I noted since 8^th of February to 19^th of February 2016 after his bail was refused was more than sufficient time for him to contact his lawyer for such application. He instead preferred it after the death of his father. It would be more convincing if he had done so like in the case of Toata. Death of a family member is part and parcel of realities we have to face and live with it in life whether or not we like it. We cannot erase that with time, money or even law. Having said that, it is my opinion that the information contained in the sworn statements before me are unsatisfactory and fall short of explaining why he prefer to release on bail after the death of his father.
    
18. Further, I am not convinced from those materials how his whole family will be adversely affected if he does not present during those social gatherings. Not only that, but the danger it poses if the Court accepts that ground in relation to granting of bail is that, apart from family obligations, future bail applicants will use land matters to gain Court’s favour to grant them bail even when charged with serious offences taking into account most people in Solomon Islands come from rural areas with strong connection to customary landownership. The Court must be sensitive to those trivial grounds and must adjust accordingly in administering justice.
    
19. For these reasons, again, nothing has been shown that would justify me to review my earlier decision and this application is one I must dismiss.
    
20. Further application for bail in respect to this applicant has to be heard in the High Court 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] [2006] SBHC 54
^[3] Instances involving these accused persons: Manase Oso and Chris Akwai

[4]FJMC 64; Criminal Case 714.2010 (28 April 2014)

^[5] [2011] PGSC 13
^[6][1978] PNGLR 156
^[7] [2011] SBHC 54; HCSI-CRC 481 of 2010
^[8]HC-CRC No. 15 of 1995 (unreported)
^[9] Page2, paragraph 5
^[10] [2004] SBHC 81; HC-CRC 032 of 2004