Regina v Konai [2017] SBMC 45; Criminal Case 655 of 2017 (25 September 2017)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 655 of 2017

REGINA

Respondent

V

JEROM KONAI

Applicant

Date of Hearing: 21^st September 2017
Date of Ruling: 25^th September 2017

Mr. P. Abe for the Prosecution/Respondent
Mr. C. Ruele for the Defendant/Applicant

RULING ON BAIL

1. This is the first bail application pending trial for Jerom Konai (“accused”) who was charged with rape, contrary to section 136F (1) (a) and (b) of the Penal Code (Amendment)(Sexual Offences) Act 2016.
   
2. Two sworn statements were filed in support of his application. One from himself while the other from his wife who is willing to be his surety.
   
3. His wife is currently living at Burnscreek with their six children. Four of their children are now attending school. However, following his incarceration, his eldest daughter could not able to continue with her secondary education at Panatina due to financial difficulties.
   
4. His wife has promised to assist him to comply with all his bail conditions if he is released on bail.
   
5. The prosecution objected to the application, emphasising the usual grounds such as the seriousness of the offending since the offence of rape carries a maximum penalty of life imprisonment; the likelihood of interference with the prosecution witnesses due to close proximity of his residential area to the victim’s family and the believe that he will come into contact with the witnesses since one of his children is attending school at NAC; also the victim is related to him so there is tendency that he will use their relationship to influence her to frustrate this case and the likelihood that he will abscond bail if he is released on bail.
   
6. The prosecution did not support that argument/assertions with any sworn statement from the police investigators or even from the victim’s family. The failure to do that has rendered its objection groundless when weighed against the defence application.
   
7. In any contested bail application in the first instance, the prosecution is equally expected to provide sworn statement(s) like what the defence did when applying for bail. This is important for the following obvious reasons:
   
   • (a) First, the burden of convincing the Court that bail should not be granted to the applicant rests on the prosecution. Therefore, it is incumbent on the prosecution to support its objection with evidence from the investigators or the family members of the victim as any submission/assertion that does not accompany any evidence is merely personal opinions of the prosecutor; and
     
   • (b) Second, the right to bail is a constitutional right of an accused and cannot be unnecessarily withheld. It is a right that is afforded to an accused by our supreme law. Therefore, it is only proper and fair to the accused if the decision to refuse bail is founded on evidence and not one that is merely based on guesswork.
     
8. Unless there is evidence showing the accused should not be granted bail, the Court will accede to the application especially when the applicant has provided reliable evidence that he has a residential address to live whilst attending to his case in Court.
   
9. In this case, his wife in her sworn statement^[1] had deposed that they had been living at Burnscreek in East Honiara since 2003. The accused also confirmed this and promised to live with his wife at Burnscreek while he will continue to attend to his case.
   
10. Upon considering these facts/evidence offered by the accused regarding his residential address, I am satisfied that there is an absolute guarantee that he will live at Burnscreek while he will continue to attend to his case at the Central Magistrate’s Court. Having lived at Burnscreek since 2003, I am further satisfied that he has a fixed residential address given the lapse of time and therefore, the risk that he will abscond bail is clearly diminished. This ground now satisfies the principal consideration on whether or not to grant bail in any bail application.
    
11. Otherwise, the other risks alluded to by the prosecution can be minimised by imposing of stringent bail conditions.
    
12. I grant him bail on the following strict bail conditions:
    
    • (1) The accused, Jerom Konai (“accused”) is not to be released from custody unless he pays a cash bail of $2000.
      
    • (2) His surety, Rose Konai, must also enter into her own surety/recognisance/bond of $1,000 to ensure she will also assist the accused to comply with the bail conditions imposed herein.
      
    • (3) The accused must live at Burnscreek, East Honiara, until further orders of the Court.
      
    • (4) The accused must not go beyond Lunga Market/Bustop area or White River 02 bustop or travel out of Guadalcanal Island to other provinces, except with the permission of the Court.
      
    • (5) The accused must report to Kukum Police Station twice a week on Mondays and Fridays between the hours of 8:00am and 5:00pm.
      
    • (6) The accused must not contact or verbally threatens the prosecution witnesses through any means of communication including but not limited to mobile, telephone communications or text messages whilst his case is still active before the Court.
      
    • (7) The accused must not interfere with the police investigation regarding his case either directly or indirectly.
      
    • (8) The accused must not commit any new offence(s) whilst on bail.
      
    • (9) He must attend to all his future Court hearings unless his attendance is excused.
      
    • (10) If for some unforeseen circumstances or reasons the accused does not attend to his case as required, he must inform his lawyer about his nonattendance or better still, send any of his family members to appear on his behalf to explain his nonattendance.
      
    • (11) The prosecution reserves the right to revoke his bail if he breaches any of these conditions.
      

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(Augustine Aulanga – Principal Magistrate)

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^[1] Filed on 19^th September 2017