R v Tora [2021] SBMC 7; Criminal Case 275 of 2021 (19 May 2021)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 275 of 2021

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: MURIEL TORA

Mr Jonathan Auga for the Crown

Accused appear in person

Date of remand application: 7^th of May 2021

Date of ruling: 19^th of May 2021

Appearance on 19^th May 2021: Mr Taupongi (ODPP) and Mr Houa (PSO)

RULING ON REMAND APPLICATION

1. On the 7^th of May 2021, the Crown made an application to have Ms Muriel Tora remanded in custody. Ms Tora is charged with one (1) count of infanticide, an offence contrary to section 206 of the Penal Code.
2. It is alleged, that on the 4^th of May 2021, Ms Muriel Tora gave birth to a baby, and later disposed it beside a stream.
3. It is further alleged, that at the material time, Ms Muriel Tora, was residing at Jericho II with her Aunt, Jemimah Wai. I take judicial notice, that Jericho II is located somewhere near the Vara-creek and Tuvaruhu areas, in Central Honiara.
4. It was during the early hours on the 4^th of May 2021, that the incident was alleged to have happened. Jemimah Wai came to discover blood stains inside the toilet room when she went there to use it.
5. It was due to her questions that it became later known, that a baby had been given birth to, and that it had been placed near the stream.
6. Facts went on to show that the Accused, Ms Muriel Tora was escorted, right after the discovery was made, to the Central Police Station^[1]. The lifeless body of the baby was then taken to the National Referral Hospital by officers who attended to the report^[2].
7. While I commend our Police officers for quickly turning up to the scene, it seems that they still do not see section 23 of the Criminal Procedure Code as a rule that should be given prime consideration. I note that the Accused, as seen in the facts, was taken to the Central Police Station, on the 4^th of May 2021^[3]. It was until the 7^th of May 2021, that she was brought to court for a remand application. To this extent, strict measures should be taken against Police officers who continue to omit their duties, as stipulated by the law.
8. This section states:

When any person has been taken into custody without a warrant for an offence other than murder or treason, the officer in charge of a police station to whom such person shall have been brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate Magistrate's Court within twenty-four hours after he has been so taken into custody, inquire into the case, and unless the offence appears to the officer to be of a serious nature, release the person on his entering into a recognisance with or without sureties, for a reasonable amount to appear before a Magistrate's Court at a time and place to be named in the recognisance, but where any person is retained in custody he shall be brought before a Magistrate's Court as soon as practicable^[4]:

Provided that an officer of or above the rank of sergeant may release a person arrested on suspicion on a charge of committing any offence, when, after due inquiry, insufficient evidence, is in his opinion, disclosed on which to proceed with the charge^[5].

9. It is sad, and quite surprising at the same time, that officers like Pauline Kezi, who have been with the Royal Solomon Islands Police Force, since 2007^[6], as seen in her sworn-statement, still fail to consult with the Criminal Procedure Code, to ensure that their investigations, are in accordance with section 23 of the Criminal Procedure Code. The same can be said for the Crown.
10. Time and again, the courts have emphasised on the need for actions of the Police to be done in accordance to the governing laws, but it seems that these laws, especially section 23 of the Criminal Procedure Code, the constitutional rights of a person as enshrined in the Constitution, and the remarks and recommendations uttered by the courts in this regard, are of no significant meaning to the Police. I understand that a baby was given birth to, and was dumped, which obviously is very emotive to the community as a whole, and the police, who are tasked with the traumatising duty of picking up the lifeless body and carrying out investigations to put together the entire evidence.
11. I note, that the vigorous comments and condemnation that maybe made by the public especially through social media, and within the communities, as to the failures and lack of concern shown by the young women engaged in such unthinkable actions, and the questions as to their ability to motherhood, have seem to be the underlying factor as to how cases are being investigated by the Police.
12. While I understand that such a case is very disturbing in nature, especially where an innocent life is left out to die in an environment that is new and dangerous to him or her, not to mention the beliefs shared in both the biblical and cultural contexts, the public and the police need to be reminded, that there are laws which have been put in place to be complied with, and not to be tacked away in the office cabinets for cockroaches to nibble away on. When laws are made, they are meant to be followed.
13. Obviously, the failure does not fall entirely on the Accused, for falling pregnant and later disposing of the baby. It is also the duty of the very family members who are now key witnesses in this case, to monitor the Accused, and to ask the relevant questions that could have avoided the allegation in this regard from happening. It now seems that the family members after failing to do their duty, have also decided to turn away from having anything to do with the Accused, as seen on the 7^th of May 2021, where there was no single relative who turned up to morally show the support that she is obviously in need of, despite of the allegations against her.
14. The court, especially the justice system, is founded upon legal principles, none of which includes how the public feels about such cases.
15. It makes no sense for people to be arrested and charged for breaking the law, by the Police, while some Police Officers are not reading their laws properly and have on numerous times, acted in contrary of the very laws they should be upholding, such as the Criminal Procedure Code.
16. In support of their application, the following were submitted:
    • (i) Seriousness of the offence.
    • (ii) Investigation still in progress.
    • (iii) Interference with police witnesses.
    • (iv) Safety of Defendant.
    • (v) Absconding.
    • (vi) Public interest.
17. In light of these grounds, I wish to highlight the following:

Seriousness of the offence

18. As stipulated under section 206 of the Penal Code, I have note that the punishment that any woman convicted for the offence of infanticide will face, would be the same if she had been guilty of manslaughter. This would explain why both the Police and the Crown have come to use this as one of their grounds. However, as highlighted at paragraph 13 of his ruling in the case or Gitoa v Regina, Justice Apaniai, as he was then, states:

“It has been said in a number of cases before that the seriousness of a charge in itself is no reason to refuse bail^[7]”.

19. The fact that all remand applications continue to raise the issue of seriousness as a factor to refuse bail, is an indication of how both the Police and the Crown need to conduct more comprehensive research to assist them, especially when previous courts have already shared their views in terms of the seriousness of an offence.

Investigation still in progress

20. In all police investigations, it is always in the best interest of an individual case, that investigations be carried out smoothly. It is submitted that since this is a fresh matter, and should the accused be released on bail, she might tamper with the evidence that might help in this case.
21. I fail to see as to how exactly the Accused would or might tamper with evidence, since the Crown did not provide any further evidence to prove any likelihood of tampering with evidence. My question in this regard is, what was the reason that caused the Crown to even think that she might tamper with evidence? Is the Accused, the sort of person who is notoriously known to the Police and the Crown as a liar and a run away, or did she fail to cooperate with the police when she was taken in for questioning, or was there a report made by someone who had known her since childhood, that she is known for having things her way, what exactly did she do, that caused both the Crown and the Police to think, that if she is to be released on bail, she might tamper with evidence?
22. I expect to see such evidence in the sworn-statement of Pauline Kezi, and not mere speculations as seen all throughout her evidence.

Interference with police witnesses

23. Both the Police and the Crown are of the view that if the Accused is to be released on bail, she might interfere with potential police witnesses, whom are all believed to be very close relatives. While this seems to be the view taken by the Crown, there is nothing to suggest that the Accused is someone with an aggressive behaviour towards her family and close relatives, or that she is capable of inflicting harm on others to prevent her wrongs from being corrected.

Safety of the Defendant

24. In this regard, both the Police and Crown believes, that given the allegations involving the Accused, the community might not have respect for her. This is exactly the kind of mindset that has been interfering with the work of the Police. While I understand that such mindsets are closely attuned to all of us as human beings, the Police must acknowledge the relevant rules and laws that have been put in place to regulate how they act in such circumstances.

Absconding

25. In terms of absconding, both the Police and the Crown think, that given the seriousness of the offence and its penalty, there is a likelihood that if the Accused is granted bail, she might abscond any future appearance and prevent justice. I note that similar views were shared in paragraph 17 of Pauline Kezi’s sworn-statement.
26. Once again, I see these views as mere assumptions where both the Police and the Crown have not fully assisted this court by way of pointing out any substantial fact that could prove their view.

Public interest

27. In terms of public interest, both the Police and the Crown thinks that it is appropriate, that a clear message be sent out to the community and the society as a whole that perpetrators will be dealt with accordingly to the law.
28. From this view alone, I note, how a conclusion has already been made as to the guilt of women involved in this offending. While both the Police and the Crown do seem to advocate on how persons involved in this kind of offending will be dealt with, they fail miserably to acknowledge, that when a person has been held for over 24 hours, in police custody, is against the Criminal Procedure Code and the Constitution of this country.
29. Once again, I would like to emphasis on how the public perspective has seem to influence the Police when dealing with cases like this, as oppose to adhering to the laws that they should be upholding.
30. I now make reference to paragraph 15 of Justice Apaniai, as he was then, in the case of Gitoa v Regina, and hereby wish to highlight the following remarks:

It appears to have become a practice for the Crown to raise the usual risks (risk of flight, risk of re-offending and risk of interference with witnesses) as grounds for refusing bail and the argument has always been that the existence of these risks must be readily assumed and need not be proved as a fact due to the seriousness of the charges. There may be merit in that approach, but I think the time has come for the courts to look for real risks rather than assumed risks as grounds for depriving an accused person of his right to bail. Rather than assuming that every person accused of serious offences is likely to abscond or re-offend or interfere with witnesses, I think there must be some evidence of a real or actual risk that the accused person will abscond or interfere with witnesses or re-offend. To deny bail on the basis of assumptions runs counter to the presumption of innocence and the prima facie right to bail as provided for under sections 5 and 10 of the Constitution. For someone to be placed behind bars for a considerable length of time awaiting trial only to be found innocent after trial would be nothing less than grave injustice^[8].

31. The case of Gitoa should always be borne in the mind of any Public Prosecutor who intends to seek remand orders from the court.
32. In such circumstances, the starting point must always be the prima facie right to bail. While granting bail is not mandatory in nature, the burden always sits upon the Crown, to point out and prove as to why a person charged for offences other than murder and treason, should not be granted bail.
33. As per my observation on the 7^th of May 2021, there were no family members or relatives who turned up to morally support the Accused. Before delivering the ruling, I asked if there were other relatives in town whom the Accused would prefer to live with, should bail be considered, she responded with a no. When asked if she would prefer staying at the Holy Cross Compound under the guardianship of Arch-Bishop Chis Cordone, she agreed and nodded.
34. Fortunately, a face to face meeting was conducted at 1:30 pm, on the 11^th of May 2021, where the Arch-Bishop acknowledged the unfortunate situation now faced by the Accused. The Mother General of the Solomon Islands Catholic Church was then contacted, and was informed of the situation. The matter was recalled at 3:00 pm, on the 11th of May 2021, where parties were informed of the discussions reached and the response from the Convent at Visale, as to their capability of housing the Accused, should she be released on bail. However, they pointed out their inability to deal with persons who have gone through some levels of trauma.
35. The attempts in contacting the Christian Care Centre for assistance, was also unsuccessful and sad to some extent, where they are not in reach when issues pertaining to what they advocate for, arises.
36. On the 12^th of May 2021, I made a verbal order in court, whereby the Public Solicitor’s office was asked to assist Ms Tora, given the unfortunate circumstances involved.
37. On the 19^th of May 2021, I recorded Mr Houa’s appearance, from the Public Solicitors Office, who now acts for Ms Tora. I also recorded appearance from Mr Taupongi of the Office of the Director of Public Prosecutions, who stood in for his colleague, Mr Auga. I was informed, that the physical file is with the Police. Since I informed parties of what Mr Auga had mentioned on the 12^th of May 2021, where he will not oppose to bail at this stage, Mr Taupongi informs that he will stick with what Mr Auga had previously indicated in terms of bail.
38. I have also received a submission from the Defence, which seeks that the Accused be released on bail. While the submission did not identify any bail conditions, as well as who will act as surety, I was verbally informed that the Seif Ples Clinic, will be accommodating Ms Tora for the time being, if the court is to consider their application. A staff from the Seif Ples Clinic was also present in court, when the submission was tendered.
39. At the moment, Solomon Islands, still does not have a particular law that regulates bail. Parties would agree that currently, the courts are still consulting with the Constitution, the Criminal Procedure Code and the Penal Code, to address the issue of bail, as opposed to consulting with just one law.
40. In the near future, it would be convenient if the question of bail is only captured in a single law, such as the Republic of Fiji’s Bail Act of 2002.
41. In light of the submissions that are now before me, I wish to direct parties to take due consideration of the remarks earlier raised, not as harsh criticisms, but a reminder that must and should always be borne in mind.
42. Be reminded, that the courts will always be inclined to rule in accordance to real risks and not mere assumptions, which seems to be the practice nowadays for both the Police and the Crown. I strongly urge both the Police and Public Prosecutions to deviate from such techniques to ensure that our laws are complied with.
43. With the views and remarks shared in this ruling, I am not inclined to accept the grounds highlighted by the Crown, as well as the sworn-statement by Pauline Kezi.
44. Hence, I now make the following orders:

ORDERS:

(i) The application sought to remand the Accused in custody, is refused for lack of proper and substantial evidence;
(ii) Ms Muriel Tora is granted bail at her own recognisance, with a Principle bail of SBD$500.00.
(iii) The Accused, Ms Muriel Tora, is to be released from the Rove Correctional Centre, and is to be accommodated at the Seif Ples Clinic, at Rove, where she is to reside until any change of circumstance;
(iv) Ms Muriel Tora is to keep the peace and is to enter a bond of good behaviour throughout the duration of this matter.
(v) Right of appeal applies to any party that is aggrieved, within 14 days from this date.

Dated this 19^th day of May 2021.

___________

THE COURT

Emily Z Vagibule-Magistrate

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^[1] Paragraph 18 as read with paragraph 3 of the remand brief.
^[2] Paragraph 17 as read with paragraph 3 of the remand brief.
^[3] Above n 1.
^[4] Section 23 of the Criminal procedure Code of the Solomon Islands.
^[5] Above n 4.
^[6] Paragraph 2 of the sworn-statement by Pauline Kezi.
^[7] [2011] SBHC 154; HCSI-CRC 440 of 2011 (15 December 2011), paragraph 13.
^[8] [2011] SBHC 154; HCSI-CRC 440 of 2011 (15 December 2011), paragraph 18.