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Peter v Regina [2007] SBHC 162; HCSI-CRC 427 of 2007 (12 December 2007)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 427 of 2007

STEPHEN PETER

-V-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)
Criminal Case No. 427 of 2007

Date of Hearing: 5th December 2007
Date of Ruling: 12th December 2007

For Accused: Mr Cadre
For Crown: Ms Chalmers

RULING

Naqiolevu J: This is an application for bail by the applicant who is charged with several offences related to the incident that occurred on the weathercoast.

1. Counsel for the applicant submit the applicant has been in custody since 10th November 2003, and has not made any bail application before the Court in this matter.
   

2. The allegations counsel submit relate to May 2003 and he has been in custody since 10th November 2003, but only charged in mid 2007.

3. The applicant had pleaded guilty to charges in relation to the incident in Marasa in September 2006, and was sentenced to 6 years imprisonment which was backdated to his original remand in custody. He was due for release on the 10th of November 2007, and he is of the belief that due to back dating and remissions he is eligible for release on the 10th of November 2007.

4. Counsel submit bail ought properly be granted based on the following facts:

(a) delay in the formal procedure until such time as the Applicants sentence is nearly due to expire which is unfair to the applicant.

(b) the offence is not a fresh one in that it is alleged to have taken place prior to the arrest for his charges relating to the current sentence.

(c) the preliminary prosecution brief does not contain any allegations that the applicant was directly involved in the alleged murders as and or immediately after 27th of May 2003 in the Oghio Valley. Rather it contains allegations that he was one of the 50 persons who went on that operation and he played a lesser role

(d) some others who are alleged to have this level of involvement have not been charged and one Hai Boka who was charged earlier this year with Murder on a separate charge was permitted by the DPP to plead guilty to Manslaughter.

5. Counsel submit there is no risk of absconding and the mere fact of the seriousness of the charge is insufficient to conclude there is a risk of absconding. There is nothing to suggest that he will flee. A surety has been filed and there is a fix address at Kukum, where there are strong community ties.

6. The Court needs to adequately consider and accord proper weight to the considerations relevant to the individual accused, such as, antecedents, nature of the offence, strength of the prosecution case and community ties.

7. Counsel submits the prosecution cannot on the balance of probability when all the evidence is considered, prove substantial ground for believing that flight, interference with witnesses or offending will occur.

8. Counsel submit the nature of the offence and the strength of the prosecution’s case is clearly important consideration but the Court must consider the various witness statement tendered.

CROWN’S OBJECTION

9. The applicant is charged with a number of very serious offences.

10. The applicant is currently serving a sentence of imprisonment related to his involvement in the Marasa Murder. He has recently been remanded in custody by the Magistrate Court on the current charge.

11. In opposing bail the Crown relies on the fact that the applicant is charged with the most serious of offences and the evidence against him is sufficient to prove the charge on the basis he is facing a real proposed of mandatory life imprisonment. This raises a Prima facie risk that he may try and avoid trial.

12. The Common Law however and the Law of Solomon Islands is that in cases of murder, the onus is on the accused to demonstrate exceptional circumstances warranting bail.

13. The Crown dispute there has been an undue delay or unfairness in the matter. The applicant is due to face a long form preliminary inquiry set down for 3rd of March 2008.

CONCLUSION

14. The Court has carefully considered the application for bail and the submission in support of the application. The Court has taken into consideration the objection by the Crown and the reasons advanced.

15. The Court consider the offence which the applicant is charged with is serious. However it must weigh this with the liberty of the person as enshrind in the Constitution. The Crown has been quite content not proceed against the accused for a period of four years and the eve of his release file fresh charges against him.

16. The Crown claim a co-accused in this matter a John Bote, was refused bail by the High Court as the Judge consider there was prima facie evidence against the applicant, and he was not satisfied that the delay in the case was not such that it had become a reason for considering bail.

17. This Court in the recent case of another co-accused Samson Leketo consider the delay was important which was further compounded by the crown filing charges against, the applicant on the eve of his release from prison, when he was about to "see the light at the end of

the tunnel". The Court consider this to be an exceptional circumstance.

18. The Court is of the view that the Crown will have its day in Court when it will have to prove its case beyond reasonable doubt. The Court further consider the applicant will have his day to defend this case but in the meantime he must be given the benefit of protection of Constitutional right to a reasonable time with freedom to prepare his case.

19. The Court further consider the Crown has not discharged the onus the applicant will abscond or that he will interfere with witnesses. The Court consider the applicant is willing to provide a surety with his family and he has community ties.

20. The Court in all circumstances consider these are clearly exceptional circumstances to enable it to grant bail with strict conditions.

ORDER

1. Applicant release on bail in the sum of $1,000.00 with a surety

of Adrian Buakolo

2. Not to interfere directly or indirectly with any prosecution witnesses, or with the investigation of this case.
   
3. Reside at Kokomu Village.
   

4. Report to Central Police Station every Monday, Wednesday and Friday between the hours of 9 – 4pm.

5. To appear the Central Magistrates Court on the 3rd of March 2008.

THE COURT