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Basiagalo v Regina [2006] SBHC 118; HCSI-CRAC No 109 of 2006 (12 May 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No: 109 of 2006

BANABAS BASIAGALO

v

REGINA

(Nagiolevu, J)

Date of Hearing: 10^th April 2006
Date of Judgment: 12^th May 2006

For Applicant: Mr. Partick Southey
For Respondent: Mr. Thorpe

RULING

APPLICATION FOR BAIL

Naqiolevu J. This is a bail application on behalf of the applicant who is charged with two counts of the offence of Attempted Murder contrary to Section 215 of the Penal Code. The applicant was arrested and charged on the 27^th of January 2006 and remanded in custody.

APPLICANT'S SUBMISSION

Counsel for the applicant seek bail on the following grounds:-

1. It's been more than a year since the alleged offence and the arrest of the applicant and the delay works in favour of the applicant. During this period the applicant has led a stable life, remained in steady employment during which period he was interrogated by police, upon return continued a steady employment and home life.

2. The applicant has already demonstrated that he is a negligible risk of failing to answer bail and the court can have a high degree of confidence that the applicant will continue to carry on in the same exemplary fashion.

3. The applicant after being interviewed by police on the 26th of October 2005 was released straight back to the community demonstrating they did not have any really serious concerns about the applicant being at large. He was charged some few months later.

4. Learned counsel submit that the applicant does not need to demonstrate exceptional circumstances and he should be released on bail. The applicant's strong ties to Honiara and his likelihood of answering bail and the fact that he is clearly not regarded by the police or prosecution as one of the principal offender should be considered.

CROWN OBJECTION

5. The Crown in opposing bail, submit that the power to grant bail in murder cases vests within the High Court, it can only be granted under exceptional circumstances. Learned Counsel for the Crown submit the applicant must point to some exceptional circumstances to justify the granting of bail. The exceptional circumstances have been held to relate to circumstances under which the various offence have been committed and the circumstances of the accused. Counsel refer to the case of Pich -v- R (¹) These he said include the usual considerations the court is required to consider when determining whether bail should be granted. They do not however, counsel maintain, the persons personal circumstances including the hardships that the accused family may be facing as a result of him being held in custody.

6. The test to be applied submit the Learned Counsel is whether or not it is probable that the accused will appear in court at the trial date. That in turn counsel submit involves a consideration of the nature of the allegation against the accused, the nature of the evidence supporting the accusations, the seriousness of the penalty that may be imposed and the availability of sureties. In assessing the case against the accused at a bail application, the Crown's evidence is to be taken at its highest. Counsel further submit in assessing the nature of the allegations against the accused the court is entitled to take into account aggravating features such as whether there was the use of weapons, whether the offence was preplanned, and whether it was committed by a group of people acting together. The question of whether the accused might interfere with witnesses need to be taken into account and the protection of the community.

TEST TO BE APPLIED

7. The offence of which the applicant is charged with are serious offence and the penalty if convicted is quite severe. The court however in considering whether to exercise the discretion to grant bail must take several factors into account.

These factors are:-

a. The likelihood of the applicant absconding on bail;

b. The nature of the seriousness of the offence;

c. The nature of the evidence to be adduced;

d. The severity of the punishment;

e. The likelihood of the applicant interfering with prosecution witnesses;

f. The possibility of repetition of the offence;

g. The length of the delay;

h. The family needs of the applicant.

8. On the likelihood of the applicant absconding, Ward CJ in R -v- Kong Ming Khoo (²) has clearly laid down the principle of law.

9. The severity of the punishment in this case would obviously have an impact on his attending trial. Refer to Ward CJ R -v- Kong Ming Khoo (³)

10. On the important fear of the prosecution on the likelihood of interfering with witnesses, PALMER PJ as he then was referred to this possibility in R -v- Perfili (⁴) where the court was entitled to consider factors when considering to exercise the discretion to grant bail.

11. On the issue of the length of delay and the family needs of the applicant, I refer to the case of R -v- Perfili (⁵) where PALMER PJ as he then was, and the case of R -v- Philip Tagea & Others (4) where PALMER PJ as he then was, where his Lordship stated that some factors must be shown that a wife or children urgently need an applicant and if he is not released something drastic will happen to them.

12. Clearly the court consider these factors are of serious implication and must weigh with the circumstances of the case. The crown maintains that if the applicant is released on bail he will abscond. The applicant has demonstrated his ability to flee as he did immediately after the shooting incident. The court accept that while the applicant has indeed left Honiara after the incident he did return after 3 days and resume his employment. The court accepts that while some of the prosecution's concern maybe unfounded it must consider this in light of the serious nature of the offence. The firearms are still outstanding and offenders are still at large. The court must also take into account, the nature of the allegations, the aggravating features of the offence, the use of firearms at a moving vehicle which is highly dangerous. The offence was preplanned by a group of people acting together. The applicant had stated in his interview on the 26^th of October 2005 that he had spoken to one of the co-accused on a number of occasions prior to the shooting and agreements were made between them to carry out a shooting against RAMSI for payment of money.

13. The court consider having taken these factors into consideration and in properly weighing them with the applicants circumstances, his stable home life and ties to Honiara, the stable employment history.

14. The Court having further consider that the applicant does not need to demonstrate special circumstances. The court however consider the risk factors of releasing him to the community is high and the likelihood of interfering with prosecution is real.

15. The court in all circumstances having properly considered the evidence and the submission by counsel is not minded to exercise the discretion in the applicants favour.

Bail is therefore refused.

THE COURT

ENDNOTES:

¹ Unpt case No. 54 of 2004
² CRC 15 of 1999
³ Ibid
⁴ CRC 30 of 1992
⁵ CRC No 14 of 1995