HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 101 of 2002

REGINA

–V-

WITNEY PIOPIKO

High Court of Solomon Islands
Muria, CJ

Date of Hearing: 5th May 2003
Date of Judgment: 5th May 2003

DPP for prosecution
D Tigulu for the accused

Muria, CJ: The applicant, Witney Piopiko, in this case has been charged with murder. It was alleged that on 31st October 2001 he murdered Ramo Sukulu at Bareho village, Western Province. He was arrested and brought before the Court on 11th November 2001 and remanded in custody. On 25th March 2002, the Magistrates Court, Gizo committed the applicant for trial in the High Court. He was originally remanded in the Gizo Prison, but due to overcrowding, he was transferred to Honiara, Rove Central Prison where he is presently in remand. The accused now through his Counsel, applies for bail pending his trial.

In support of the application, Mr Tigulu has taken the Court through the various considerations appropriate in application for bail and the Court is very grateful to Counsel for doing so. In brief these considerations are (a) whether the applicant will abscond on bail; (b) the nature of the allegations or seriousness of the alleged offence; (c) the nature of the evidence to be adduced against the accused; (d) whether the applicant will interfere with prosecution witnesses and investigation; (e) the possibility of repetition of offence; (f) surety; and (g) delay in the trial. Counsel had been helpful in discussing each of these considerations, in the light of which, Counsel submitted that the applicant ought to be granted bail pending his trial.

I accept that the considerations referred by the Counsel are important and the Court, before exercising its discretion as to whether or not to grant bail, must take them into account when dealing with a bail application. But each of those considerations does not stand alone. Rather each factor is considered in conjunction with the others, so as to enable the Court hearing the application to properly determine whether bail is appropriate in a given case bearing in mind the circumstances surrounding the case. An accused may very well attend his trial, but if granted bail, he may very well also present the risk of interfering with prosecution witnesses and investigation, especially where the accused and witnesses come from the same locality. This is an important consideration in this case, as the accused and witnesses are relatively all from the same area within Bareho, in the Western Province.

Counsel raised the concern that while the offence alleged in this case is a serious one, the nature of the evidence likely to be adduced at the trial may also raise some challenge to the prosecution case. In this regard, Counsel had intimated the possibility of a defence of self-defence being raised. I accept that this is a serious case and also the possibility on the part of the defence challenging the prosecution case. I accept these are factors to be considered in this application also. I do bear them in mind. I also bear in mind what Counsel had stated regarding the compensation of $20,000.00 paid to the deceased’s family and that there would be no occasion for a repetition of the offence by the applicant. As to the question of surety, Counsel had stated that the applicant’s brother is willing to be a surety. There is infact an affidavit by George Whitney, the brother of the applicant, in which he deposed that he was willing to be surety for the applicant. I bear this in mind along with the other factors already mentioned. In addition I am mindful of the delay in bringing the applicant to trial. The learned DPP has indicated that the trial of the applicant is likely to proceed within a matter of weeks from now, possibly in June (next month). This indication has also assisted the Court in discerning on the question of surety and on the issue of delay as raised by Counsel. Thus, as I have said earlier, each of these factors is linked to the others as to how it affects the exercise by the Court of its discretion in a bail application.

What I have said applies to bail application for any criminal case. But there is one further consideration yet that must be borne in mind in a bail application where the applicant has been charged with the crime of murder. That factor is that the applicant must demonstrate that there are exceptional circumstances present justifying the grant of bail to him or her in such a case. This is because when one considers that effect of sections 23 and 106 of the Criminal Procedure Code, section 23 refers to an offence “other than murder or treason” and section 106 refers to a person “other than a person accused of murder or treason”. It would seem that bail is a rare commodity in murder or treason cases and it is seldom granted in such cases. Thus, only in ‘exceptional circumstances’ that bail may be granted in murder cases where the Court’s power to grant bail must be exercised with even greater care. So that although the Constitution provides for the right to bail under section 5 (3), it also sets what can be regarded as a ‘constitutional standard’ to be met in the exercise of the power to grant bail. That standard is the requirement ‘to ensure that the accused appears at his trial’. If that constitutional requirement is to be met only by denying bail to the applicant then the Court is obliged by law to refuse bail. This somewhat places a heavier burden on the applicant to show why his detention in custody is not justified.

In the present case, no exceptional circumstance has been shown to justify the granting of bail. The application is refused.

Sir John Muria
CHIEF JUSTICE