HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 201 of 2001

REGINA

–v-

MOSES HAETALEMAE, SOLOMON TOHUBO, EDWIN WATEINAOMAE AND SANIEL AWA

(FRANK O. KABUI, J.)

Date of Hearing: 6th March 2002
Date of Judgment: 7th March 2002

DPP for the Crown
I. Kako for the Applicants

RULING

(Kabui, J): This is an application for bail by Saniel Awa and Moses Haitalemae. They are co-accused with Edwin Wateinaomae Wahu and Simon Awa for the murder of Rocky Kereta'ai on 30th March 2001 at Afio, South Malaita. This application was brought in this Court under section 106 (3) of the Criminal Procedure Code Act (Cap.7). They were arrested by the Police and brought to Auki and were remanded in custody there. They were brought to Honiara on 16th April 2001 and eventually appeared in the Central Magistrate Court here in Honiara. They were remanded in custody on the 17th April 2001. The Central Magistrate Court committed them to stand trial in the High Court on 23rd April 2001. The information by which they are charged with the murder of Rocky Kereta’ai, contrary to section 200 of the Penal Code Act (Cap.2) was signed by the Director of Public Prosecutions on 22nd January 2002 and filed that same day. All the accused have been in custody since the 17th April 2001. The trial fixed for 28th February 2002 was later aborted due to lack of funds. Obviously, Saniel Awa and Moses Haitalemae are now desirous of being released on bail whilst awaiting their trial on 13th May 2002.

The Justification for Bail

Three affidavits were filed in support of this application for bail. These affidavits were filed on same day being 3rd December 2001. In his affidavit, Moses Haitalemae says the deceased was a distant relative of his family. He says he is not married. He says his parents are old and he has a responsibility of looking after them. He says he is aware that his family and that of the deceased had reconciled upon compensation being paid according to the custom of South Malaita. Lastly, he says that although he was present during the fight, which resulted in the death of the deceased, he never came into contact with the body of the deceased. He also gave evidence in Court about his current state of health. He said that he had experienced whilst in custody pains in his joints and elsewhere in his body. He said he had been to see a doctor in Honiara but still he was not able to get well. He said if he remained in custody, he would find it difficult to get nursing help. He said that whilst in custody and was experiencing pain in his body his brother had to assist him in pressing his body and getting out for fresh air. He tendered his medical card as documentary evidence confirming his oral evidence. In response, the Director of Public Prosecutions rightly pointed out that the evidence of Moses Haitalemae was not expert medical evidence showing that a release on bail would help the recovery of the accused. However, Counsel for the accused, Mr. Kako, argued that the evidence against the accused was very weak pointing out that the accused had never came into contact with the body of the deceased so as to be connected with the death of the deceased. The Director of Public Prosecutions conceded his point and would not oppose bail.

I think this is correct. According to the evidence, Moses Haitalemae had a knife in his hand and was threatening the deceased with it. He was initially aggressive but later on he was held back by others. The evidence against him for unlawfully causing the death of the deceased is fairly weak. However, he is charged with murder, the penalty for which is imprisonment for life. Murder is a very serious crime. I bear that in my mind.

As regards Saniel Awa, the position is slightly different . In his affidavit, he says that he is married and has children one of whom is 3 weeks old. He repeats what Moses Haitalemae has already said in his affidavit about reconciliation at home following payment of compensation by the family of the accused and that of the deceased. He says whilst he was present at the scene of the fight, he denied kicking the deceased. However, Peter Porasioru said he saw Saniel Awa kicked the deceased on the right side of the deceased’s body. John Sanau confirms admission by Saniel Awa that he had kicked the deceased. Timothy Wate also confirms that he saw Saniel Awa kicked the deceased on the deceased’s back side. There is some evidence against Saniel Awa in this case. The Prison Officer, Mr Maui, swore the third affidavit in support of this application for bail. In his affidavit, he says he is related to Moses Haitalemae and Saniel Awa as cousins. He says he is the Officer-in-Charge of the Segregation Unit in the Rove Prison. These two applicants are under his supervision in the Rove Prison. He says they are men of good character in that they never have attempted to escape like the other inmates recently. He says he is willing to keep the applicants in his house and will ensure that they attend trial on 13th May 2002. He says he has discussed this matter with his wife and she has agreed to the arrangement if bail is granted. He says he also agrees to be a surety for the applicants. The Director of Public Prosecutions opposed bail in respect of Saniel Awa. He said there was evidence against him and he could abscond if he had the chance. I bear in mind that the Court has a discretion whether to grant bail or not to grant bail in murder cases such as this case. I have taken into account what had been said on behalf of the applicants by their counsel, Mr Kako. In the case of Moses Haitalemae, I do not have any difficulty in granting bail. The Director of Public Prosecutions does not oppose bail. However, I will impose conditions.

In the case of Saniel Awa, I would have to think hard whether to grant bail or not. It is not easy for me to play the balancing exercise where the case before me is a borderline one. It is really a case of placing my trust upon the truth and genuineness of the applicant’s evidence and that of Prison Officer, Mr Maui. I place weight on the fact that Mr Maui is a relative of the applicants who knows well the risk of inmates escaping and the effort, time and money required to enable Prison Officers and Police Officers to recapture them. I trust him to look after the applicants in his care and to produce them at trial on 13th May 2002. On this basis, I would also favour bail for Saniel Awa. I will also impose conditions. I do grant bail to Moses Haitalemae and Saniel Awa forthwith upon these conditions:-

1.	Each of them will report daily to the Central Police Station in Honiara before 6 pm each day;

2.	Each of them will not leave Honiara City until trial is concluded;

3.	Each of them will not speak to any of the Crown witnesses who 	may already be in Honiara.

I accept Prison Officer, Mr Maui, as surety for Moses Haitalemae and Saniel Awa in the sum of $1,000.00 each. I trust that Mr Maui will not need to pay this money to the Court because he will produce applicants at the trial on 13th May 2002.

F.O. Kabui
Judge