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Regina v Junior [2017] SBMC 35; Criminal Case 563 of 2016 (30 August 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)


Criminal Case No. 563 of 2016 & 861 of 2017


REGINA
-v-
SOLOKAI HALEA JUNIOR


Prosecution: Mr. L. Adifaka of Police Prosecutions Office
Defence: Mr. H. Fugui of ANH Legal Services
Hearing: August 28, 2017
Ruling: August 30, 2017


RULING ON SUBSEQUENT BAIL APPLICATION


  1. This is a second application for bail pending trial for the Applicant, Solokai Halea Junior, who was charged with unlawful wounding contrary to section 229 of the Penal Code, common assault contrary to section 244 of the Penal Code and presence of alcohol in person’s blood, contrary to section 43 (1) of the Road Transport Act.
  2. The Applicant is a 24 year old married man with 2 children. He is an entrepreneur and lives at Lengakiki in Honiara. Having lived at Lengakiki, he therefore, has a fixed residential address. His mother who offered to be his surety also lives at Lengakiki and works as an Acting Accountant General for the Ministry of Finance and Treasury.
  3. His first bail application was heard on 14th August 2017 during the remand application for his new charges. The Court refused to grant him bail for reasons attributing to his conduct with a police officer at Kukum Police Station where money was purportedly given to that officer, Maxwell Tala, on a believe that he would not end up in Court and his traffic matter would be discontinued at the Kukum Police Station through other illegal means. In the Court’s view, this shows he has a tendency to interfere with the police investigation if release on bail. The interference herein was established when he was lured in to give the money to Maxwell Tala or vice versa, knowing what he did was inappropriate or even illegal. The Court also urged the Applicant if that was what the concerned officer did, then the Applicant is at liberty to lodge a complaint with the Professional Standards & Internal Investigations (PSII) of the Royal Solomon Islands Police Force (RSIPF) for investigations as this kind of conduct has no place in the police force and those who involve in such corrupt practices should be held accountable for their actions.
  4. Since this is his second attempt for bail, I must apply the principles regarding to subsequent bail application by the same person whose previous bail application had been refused. These principles are well settled and have been consistently applied by this Court on numerous occasions.
  5. In the High Court case of Bartlett v Regina[1] (cited with approval in Gwao v Regina[2]), Judge Kabui (as he was then) explained this principle in the following clear terms:

“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 rmatters of 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. ( v Nottingham Justices ex p ex parte Davies [1981] QB 38)".[3]


  1. In explaining what constitutes ‘changed circumstances’ as a ground to justify the grant of bail in a subsequent bail application, Judge Apaniai, (as he was then) in the case of Regina v Charles Keku Chivili, explained:

"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]


  1. These two High Court decisions/authorities provide two limbs that need to be understood in a subsequent bail application. First, to qualify for another attempt for bail, the applicant must satisfy the court, either 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. Second, if the Court is satisfied and decides to hear the application, the next step is for the applicant to further satisfy the Court that the change in circumstances or the new facts justify the granting of bail. Unless the Applicant satisfies the Court on those grounds, any subsequent bail application should not be entertained since by doing so, the Court would been seen as an appeal Court continuing to review its own decision on the same facts already been put forward during the previous bail application.

Applicant’s Case


  1. For this application, the Applicant relied on a sworn statement of his mother, Ann Halea, who is a senior public servant working for the Ministry of Finance and Treasury (MoFT). I take cognizance that this is the first time such statement was used on his behalf. That sworn statement and the facts alluded to therein raised matters that were not brought to the attention of the Court on the previous occasion. During the previous bail hearing, the Court was only provided with a copy of a written submission but not a sworn statement.
  2. The introduction of this sworn statement therefore fulfills the first limb required in Bartlett and Chivili’s case and thus, I am satisfied that I can now consider the materials raised herein for this application.
  3. I have the benefit of perusing the sworn statement of his surety, Ann Halea, and noted the following important points:
    1. The Applicant has a fixed residential address/area at Lengakiki in Honiara. He lives at that area with his family and of course, his 2 children;
    2. He is an entrepreneur or a private businessman. The material is silent whether or not his office is located outside of Honiara or overseas but it implicit from the material that he operates his business here in Honiara;
    1. He has a supportive mother (Ann Halea) who is a senior public servant and has a fixed residential address here in Honiara as well;
    1. His mother had made assurance that she will assist the Applicant to comply with whatever bail condition(s) if he is released on bail; and
    2. His mother further asserted that the Applicant will easily comply with whatever bail conditions to be imposed and she perceived that there should not be any difficulty with such compliance.

The Objection by the Prosecution


  1. The prosecution on the other hand objected to this application and raised the issue of flight risk. Emphasis seemed to be placed on his previous absconding and the fact that having a fixed residential address does not guarantee the Applicant to appear for his future Court hearing dates. Also, the victims in this case were foreigners who came to Honiara on an official trip but were assaulted by the Applicant. Therefore, this does not speak well of our country and thus, the need for him to remand. The prosecution also stressed that by having the Applicant to remand in custody will speed up the disposal of this case in Court.
  2. No sworn statement was tendered despite the Police Prosecutions Office had been notified of the application few days before the hearing of this application. In the case of Regina v Lui Poroa Kakaluae[5] and also Regina v Natalie Keni[6], I have raised the concern that it is important for parties to provide sworn statement(s) during a contested bail application in order to assist the Court with certainty the grounds relied on for the objection and vice versa. Verbal submissions without a sworn statement carry a grave risk as the matters raised therein are only personal opinions of the defence or the prosecution and not from the parties or the investigators who involved in the case.

Decision


  1. I have already stated the matters raised in the sworn statement relied on by the Applicant are of course new facts for me to consider.
  2. It appears quite clearly to me that the issue regarding the Applicant’s having a fixed residential address is the main ground advanced by the Applicant for this application. Although there are other matters raised by his counsel such as the strength of the prosecution’s case and risk of absconding, I decided to stick to this issue as it is in any ordinary bail application in this jurisdiction the principal issue for the Court to decide. Principal herein means it is the decisive point of consideration and any other factors will always be made subservient to it.
  3. The principal consideration on whether or not to grant bail is very clear to any legal practitioner in this jurisdiction. It is well settled and one does not need to look further outside the law enunciated in R v Kong Ming Khoo[7] that the principal consideration to grant bail is whether the Applicant will attend to his trial. If the answer is in the affirmative, then the applicant must be granted bail. One of the factors that will assist the Court to arrive at that decision is the indication of a residential address.
  4. The facts before me have overwhelmingly shown that he has a permanent residential address here in Honiara so as his mother. The effect of this if I accept is, he will live at his house and continues to attend to his court hearing dates here at the Central Magistrate’s Court. His mother also promised to assist him to ensure his attendance is guaranteed all throughout and she is easily contactable at her place of work – at the Ministry of Finance and Treasury.
  5. I think much cannot be disputed from this. The facts are self-explanatory and clearly his application is entrenched. I do not see any reason why he will escape out of Honiara and leaves his wife and 2 children stranded behind or to have his business closed for the sake of avoiding this case. Unless he is insane, I do not think he will go to that extent.
  6. I take note that he has failed to appear in Court on a previous occasion resulting in a warrant of arrest. However, the facts before me have provided an assurance that even though there is any risk whilst he is on bail; that can be minimized or vindicated by imposition of strict bail conditions.
  7. It follows that the application for bail for the Applicant, Solokai Halea Junior, is granted with the following strict bail conditions for his adherence and compliance:
  8. No order for seizure of the principal bail in the other traffic charge.



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

Augustine Aulanga - PM


[1] [2006] SBHC 4
[2] [2011] SBHC 54
[3] At page 2
[4] At page 2
[5] CMC-CRC No. 54 of 2016
[6] CMC-CRC No. 220 of 2016
[7] (Unrep. Criminal Case No. Unknown of 1991)

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