HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 344 of 2007

JOHN FAIRURA, JOHN MAEFUNIA, ALFRED AOFIA WALE, 
PATRICK KAMAI AND GARY NIUFITALO

–V-

REGINA

(Mwanesalua, J.)

Hearing:	10 October 2007
Ruling:	12 October 2007

Mr C K McConaghy for the Crown
Mr Southey for Patrick Kamai
Mr Squier for John Fairura, John Maefunia, Alfred Aofia Wale
And Gary Niufitalo

RULING

1	This is an application for bail. The applicants are John Fairura, John Maefunia, Alfred Aofia Wale, Patrick Kamai and Gary Niufitalo. They were all charged with the alleged murder of late Randall Biliki (the deceased) on 14 July 2007 at the Lawson Tama Carpark in Honiara.
	
2	The applications on behalf of John Fairura and John Maefunia are straight forward. The advocate for the two accused and the advocate for the Crown both agreed that the Court exercise its discretion to allow their applications. However, the Prosecution withdrew the charges laid against them at the Magistrate’s Court before this ruling was delivered. This withdrawal was made under section 190(2)(ii) of the Criminal Procedure Code (Cap.7). They were discharged of the charges laid against them and free to be released from custody.	
3.	The remaining bail applications lodged on behalf of Alfred Aofia Wale, Patrick Kamai and Gary Niufitalo were opposed by the Prosecution. The Prosecution submitted that, in the case of Alfred Aofia Wale, he should not be released on bail because: there was direct evidence that he assaulted the deceased; that he lived near the scene of the crime; that he raised an alibi in his caution statement and that there were no exceptional circumstances entitling him to be released on bail. In the case of Patrick kamai, the Prosecution submitted that he too should not be granted bail because: there was direct evidence that he assaulted the deceased; that he was a security officer at Lawson Tama Stadium, and was there that night; that he raised an alibi in his caution statement; that there were no exceptional circumstances for him to be granted bail. And in the case of Gary Niufitalo, the Prosecution submitted that he should not be released on bail because: there was direct evidence that he assaulted the deceased; that he admitted in his caution statement that he was at the scene when the deceased was assaulted; and that there were no exceptional circumstances for him to be released on bail.
	
4.	It was submitted on behalf of Alfred Aofia Wale that he should be granted bail because: the case against him was weak; that he had close ties to Honiara; and that there is likelihood of inordinate delay in the committal proceedings. In his statement, Phillip Jack Didi (Didi) was at the scene of crime. He said: he saw about six men kicking the deceased on his head and body; he stood about two to six meters away when he saw the men assaulting the deceased; after the assault was over, he saw four of those men left the scene and walked towards Chinatown; one of them was Fred, who was well known to him before the deceased was assaulted that night; Fred lived near the Multi-Purpose Hall, close to the basketball court; and he often wore a scarf. Eric Fole, who lived at the Medical Compound also said: he knew Fred well who lived within the Multi-Purpose Hall area. 
	
5.	No person called Fred appeared as an accused in this bail application. The Prosecution suggested that the Court should draw an inference, that the person identified as Fred by Didi, assaulting the deceased, was the same person called Alfred Aofia Wale, applying for bail, in these proceedings. That might be the case, but there are insufficient surrounding facts to make that finding. It is the function of the Prosecution to find and bring the evidence to prove that issue. This Court will therefore exercise its discretion to grant bail to Alfred Aofia Wale.
	
6.	There is evidence that Patrick Kamai took part in the assault of the deceased. Didi said: that Patrick Kamai was one of the persons who attacked the deceased until he fell to the ground; that Patrick Kamai kicked and pulled the deceased to fall to the ground; when the assault was over, Patrick Kamai ran passed a green taxi car which parked at the scene, all the way to the bus stop, at the eastern end of the Lawson Tama carpark; he knew Patrick Kamai well for more than a year as a security officer at the Lawson Tama Stadium. On 17 July 2007, Patrick Kamai told the Police that during the whole night of 13 July 2007, he slept at the VIP room at the Lawson Tama Stadium. Then on 18 July 2007, he changed his story to say that on 13 July 2007, he arrived for work at the stadium at 6pm. However, he did not work that night but went out to Club Paradise; then about 11.30 pm he and Tome Taga took a taxi to Top 10 at Kukum and stayed there until it closed; then Tome Taga, two girls, a boy and himself took a taxi to Kaware Club; they arrived at Kaware at about 3 am on 14 July 2007; at about 4.30am, he and Tome Taga took a taxi into town and he went all the way to Koa Hill; at about 8 am he came to Lawson Tama where his work mate, told him that the Police would come to see him about the death of the deceased at Lawson Tama carpark in the early morning of 14 July 2007.
	
7.	The credibility of Didi’s evidence and the trust to be placed on him as a witness, are to be considered by the Magistrates’ Court during the committal proceedings. But at this stage, there is eye witness evidence implicating Patrick Kamai in the attack on the deceased on 14 July 2007, with other persons. The Court will not therefore exercise its discretion to grant bail to Patrick Kamai. His bail application is refused accordingly.
	
8.	Gary Niufitalo gave a caution statement to the police on 15 July 2007. He told the police, among other things, that: he was the driver of a green taxi car Registered No. AB1924; he was at Lawson Tama carpark in this taxi when the deceased and his wife had an argument in the early morning of 14 July 2007; his taxi faced the main road; the deceased’s wife ran to his car during the argument; the deceased followed his wife to his taxi; four boys stood with the deceased’s wife behind the taxi; he stood less than a meter near the deceased’s wife; a fight broke out between the deceased and the boys; he then reversed the taxi with headlights on and faced the scene of the fighting; the taxi was parked about 3 meters away from the scene of the fighting and that saw everything clearly; he went out of the car and moved closer to the fight; he then returned to the taxi and drove to Chinatown, but later drove back to the scene of the fight.
	
9.	There were four people in Gary Niufitalo’s taxi that night. Allan Arafoa (Jnr) was one of them. In his statement, he said: Gary Niufitalo was the driver, and the other three persons were Vanessa Iro, Timo Alu and Allan Arafoa (Jnr) himself; that this taxi drove into Lawson Tama carpark between 2 am and 3 am; the deceased’s vehicle came to the car park about three minutes later; then he saw some men fought the deceased; when the fight broke out, Gary Niufitalo reversed the taxi with its headlights on and faced it to the people who fought the deceased; Gary Niufitalo also assaulted the deceased. Gary Niufitalo kicked the deceased several times with his right leg on the side of the body; then Gary Niufitalo returned to the car and they drove off to Chinatown but returned to the scene of fighting later; Gary Niufitalo went out of the taxi, walked to the deceased’s vehicle, and kicked under the headlight of the deceased’s vehicle with his right leg.
	
10.	There is eye witness that Gary Niufitalo assaulted the deceased in this case. The Court will not exercise its discretion to release him on bail. His bail application is refused accordingly.
	
11.	Alfred Aofia Wale is released on bail on the following conditions:

(1)	He resides with Sam Misitana in Honiara.
(2)	Not to leave Honiara until preliminary inquiry is completed on his case.
(3)	Not to speak directly or indirectly to Crown witnesses.
(4)	Not to interfere directly or indirectly with Crown witnesses.
(5) To report to Central Police Station every Friday, between 
 8 am and 4 pm.	

Francis Mwanesalua
Puisne Judge