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Koria v Regina [2010] SBHC 20; HCSI-CRC 459 of 2009 (30 March 2010)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 459 of 2009

ANDREW KORIA

V

REGINA

Date of Hearing: 12th March 2010
Date of Ruling: 30th March 2010

For Applicant: Ms. R. Christensen
For Respondent: Mr. E. Cade

RULING

Naqiolevu J: This is an application for bail in respect of the applicant who is in custody.

1. Counsel for the applicant submit the applicant is charged with the offence of Murder which occurred on the 28th of April 2003.
   

2. The applicant was arrested on the 27th of November 2008, and has been in custody since that date.

3. Counsel submit this is the first application by the accused in relation to the charges.

4. The crown relies on one witness who may be viewed as an accomplice. The witness has had the misfortune to be present at two different alleged murders.

5. Counsel submit the applicant is entitled to his right to be presumed innocent, right to liberty and right to be tried within a reasonable time. Counsel submit the right to bail is clearly outlined in the decision of Palmer CJ in the case of Kelesiwasi –v-R([1]) where His Lordship said,

"Bail is a right protected by the Constitution (section 5(2). However there is a discretion regarding the granting of bail. It is not automatic. It may be refused in certain situations. It is for the prosecution to show on sufficient and proper information before the court that the circumstances of the offence and/or the circumstances of the offender warrant the accused’s remand in custody."

The ultimate question whether bail should be refused or not in this case boils down to a careful balancing exercise by this Court on whether there is a possibility of absconding, interference with the course of justice and the likelihood of the commission of further offences".

6. Counsel submit the relevance of the case is that bail can be refused only on the basis of 3 factors:

1. Risk of reoffending
   
2. Risk of Flight
   
3. Risk of Administration of Justice
   

However there are a range of factors that are relevant to this consideration and these are:-

1. Family Ties
2. Seriousness of the Offence
3. Criminal History
4. Record of Absconding Bail
   

7. Counsel assert these secondary factors clearly are only evidentiary issues that go to whether bail should be refused on the basis of any of the three primary issues. The seriousness of the offence is an evidentiary factor which may suggest a motive to interfere with witnesses. In contrast strong community ties are an evidentiary factor, which would tend to suggest a person will not flee.

8. It is clear in that a court cannot and should not refuse bail on the basis of seriousness alone. It must be that the seriousness means that the prosecution has satisfied their burden in relation to one of the primary bail concerns.

CROWN’S SUBMISSION

9. The Crown objects to bail and outlined the background to the matter. The crown assert the seriousness of the offence involved abduction and murder and indeed a vicious attack on the victim. The granting of bail to an accused charged should only occur in exceptional circumstances and cite the authority, See Sisifiu –v- R & R-v-Pioko([2])

10. Counsel submit the possibility of absconding and not turning up for his trial is real and the risk is too great for the court to take. The crown attach a running sheet of PPF (Taubman) who investigated in the matter, outlining the circumstances of the case.

11. Counsel further assert the risk of interfering with witnesses is real as the police brief of evidence discloses name and address of the primary witness who are expected to give evidence against the accused. These are persons who resided with the accused persons in the same village area at the time of the offence who directly identify the accused.

12. Crown Counsel submit bail ought to be refused on the basis of the seriousness of the offence and the likelihood of absconding. The risk of failing to appear and comply with the court order and the risk of interference with witnesses given the knowledge the accused has of the witnesses to be called.

Presumption To BAIL

13. The court is of the view that presumption to bail must be in favour of an accused and it is for the crown to clearly rebut the presumption. Bail is right guaranteed under the Constitution, however it is not a automatic right as enunciated by Palmer CJ in the case of Kwaiga –v- R([3]) where His Lordship said,

"In murder cases while bail may be granted by the High Court it is important to bear in mind this presumption of innocence and presumption of liberty reflected in a prima facie right of an accused to bail; this must always be the starting point in any bail applications. The burden of proof however still lies with the Prosecution to show that on the balance of probabilities an accused should not be granted bail. Notwithstanding what was said by this court in Regina v. Kong Ming Khoo and Regina v. Dickson Maeni that bail will only be granted in exceptional circumstances or rarely given, the court is "obliged to carefully consider each application" for bail on its merits. It is important to appreciate that "simply because an accused has been charged with the offence of murder it does not necessarily follow that he should be denied bail. The presumption of innocence and liberty do not permit such presumption to be made".

In considering bail, the court is involved in a risk assessment. This entails assessing how much risk society should bear on one hand by granting bail and how much the accused should bear on other by being remanded in custody or on conditional bail. If risks are high such that society should not be exposed to that risk, then bail normally would be refused and the accused made to bear the risk by having his presumption of innocence and liberty curtailed even in the absence of a lawful conviction in a court of law:

This risk assessment however is not as easy as it sounds because it entails a prediction of future behaviour, requiring the balancing of and measurement of what the defendant is likely to do in the future; which cannot be 100% accurate. Further much of that prediction is measured by what had "happened in the past", which can be quite unreliable and prejudicial against the accused. In many instances as well, much of what is relied on by the prosecution is based on his "interpretation of what the police had said" had happened. It is important therefore that the courts do not lose sight of the purpose and requirements of bail and what it entails. It is not what the police says which dictates whether bail should or should not be granted. It is the "balancing of the risk assessment by the Court after hearing both sides which determines at the end of the day which way the discretion of the court" will fall.

(Underlining mine)

14. The court whilst considering the risk of absconding take into consideration the applicants affidavit where he has clearly stated that he understands the charge laid against him are very serious and promise to listen to the court if it grants him bail and obey any conditions that may be ordered. Further he will return to court if granted Bail.

15. The court has considered the Crown’s objection to bail and the reasons advanced and the authorities cited. The court however distinguish the authority of Sisifiu and Pioko and Kelesiwasi adopts the principle of law enunciated by Palmer CJ in "Kwaiga-v-R, that bail may be granted in the High Court in murder cases, but it is important to bear in mind the presumption of innocence and presumption of liberty reflected in a prima facie right of an accused to bail".

16. The court considered that having assessed the risk in the future behaviour of the accused and balancing it with the past and the affidavit and report by the police officer, which may be quite unreliable and prejudicial to the accused. The court having considered the applicant has no history of absconding bail, and interfering with witnesses, the applicant has no previous conviction.

17. The court in all circumstances after carefully balancing the nature of the offence and the risk as outlined by the crown. The court is of the view that the crown has not rebutted the presumption in favour of the accused right to bail. The court is of the view that the trial of the case may not occur for a considerable time given after 16 months in custody an information has not been filed which clearly is in breach of his constitutional right to a fair hearing within a reasonable time. The court consider the applicant has demonstrated exceptional circumstances to entitle him to be granted bail however with strict condition.

ORDER

1. Applicant is granted bail in the sum of $1,000 with surety.

2. Remain in Honiara and not to approach the village of Naduidui or his village in the Weathercoast.

3. Not to approach the crowns main witnesses and any witness for the prosecution.

4. Remain in the vicinity of Honiara, seek permission from the court if he is required to leave.

5. Report to Rove Police Post 3 days a week, Monday, Wednesday and Friday between the hours of 6.00am and 6.00pm.

6. Curfew between the hours of 6.00pm to 6.00am 7 days a week.

THE COURT

^[1] Criminal Case No. 24 of 2004
^[2] (HCSI) CRC 128 of 2003 & (HCSI) CRC No. 101 of 2002
^[3] ibid