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Tara v Regina [2004] SBHC 25; HC-CRC 060 of 2004 (19 March 2004)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 60 of 2004

PATTESON TARA

-v-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J.).

Date of Hearing: 17^th March 2004
Date of Ruling: 19^th March 2004

M.W. Swainson for the Applicant
J. Cauchi for the Crown

RULING

Kabui, J. This is an application for bail by the applicant (the accused) filed on 20^th February 2004. The application is opposed by the Prosecution. The accused was arrested by the Police on 17^th December 2003 and is remanded in custody. He is due to appear in the Magistrate Court in Honiara on 25^th March 2004. He faces one charge of robbery, contrary to section 293(1) of the Penal Code Act, (Cap. 26), “the Code” and one charge of being a member of an unlawful society, contrary to section 68 of the Code. In support of his application for bail, he filed an affidavit on 25^th February 2004 in which he stated the reasons for applying for bail. Counsel for the Prosecution, Mr. Cauchi, objected to paragraphs 7, 10, 11, 12 and 13 of the affidavit filed by the accused on the ground that materials contained in those paragraphs were irrelevant to an application for bail. Paragraph 7 was about the accused not trying to evade Police arrest as alleged in the Magistrate’s Court on a previous occasion. Paragraph 10 was about Rockson Bana and Peter Stap being on bail whilst the accused was not on bail though Rockson Bana and Peter Stap faced more charges that the accused. Paragraph 11 was similar to paragraph 10 in its content. Paragraph 13 was a denial of the offence of which he is being charged. After hearing arguments from both sides, I struck out paragraphs 7, 10, 11 and 13. What is left in terms of evidence supporting the application for bail is that he says he has a family to whom he has responsibility as a father of two children and a wife. He also says that the others who are charged with the offence of robbery like himself are Stanley Kaoni, Willy Tara, Peter Stap and Rockson Bana but the last two are on bail. That is his case for bail to be granted.

The Prosecution case.

The Station Sergeant, Rhoda Michelle Panjkov currently posted at Tetere Police Post paints a different picture of the accused. She filed an affidavit on 16^th March 2004 in which she says she opposes the bail application and gives the reasons for her opposition. Her evidence is that the accused is alleged to be a member of the Central Neutral Force (now defunct) which terrorized the Gold Ridge community for sometime. There are at least 30 files outstanding for serious offences allegedly committed by the accused and the other members of the Central Neutral Force. Investigation will be complex as quite a number of persons will be interviewed resulting in the charging of offenders including the accused who may face further criminal charges later. Such a scenario would certainly present the obvious difficulty that the accused may interfere with Police investigation into the activities of the Central Neutral Force of which the accused is alleged to be a member in the past. The estimated membership of the Central Neutral Force was 30. The recent threat by a co-accused, Stanley Kaoni, in a letter received on 13^th February 2004 to the effect that those who reported any matters to the Police should retract the reports is evidence of the kind of influence that the former members of the Central Neutral Force can have on the community at Gold Ridge in terms of intimidating witnesses. Also, John Ngelea, an alleged member of the Central Neutral Force, has not answered his bail, upon being released on bail by the Magistrate’s Court. He faces a charge of arson, contrary to section 319 of the Code which carries a maximum penalty of imprisonment for life which is the same for the offence of robbery. He is believed to have escaped into the bush to avoid arrest, though a warrant of arrest has been issued for his arrest.

Should bail be granted?

The accused had been refused bail twice in the Magistrate’s Court in Honiara, the first application being on 19^th December 2003 and the second being on 15^th January 2004. I have not had the benefit of seeing the Magistrate’s Court’s records as to the reasons for the refusal of his previous bail applications. However two main reasons do stand out as being the ground for the Prosecution opposing this application. The first reason being the real possibility of absconding and secondly, the real possibility of intimidating witnesses. Counsel for the Prosecution, Mr. Cauchi, did make the point that the accused is a member of a wider group of men being members of the Central Neutral Force, some of whom were in custody, two on bail and others were at large, yet to be arrested. He said this was the context in which the present bail application was being opposed. He said there was the likelihood that the accused, if released on bail, could disappear in the rugged jungle of Guadalcanal and never be found again. Counsel for the accused, Mr. Swainson, however urged me to grant bail because it was unfair for the Prosecution to use the evidence of others to oppose bail when in fact two accused persons charged for similar offences were already currently on bail. He said the constitutional rights of the accused to bail must be taken into account by the Court in consideration of the application. He said that there was no evidence that the accused was likely to commit the same offence again, if he was released on bail. No doubt, robbery is a very serious offence and carries a maximum penalty of imprisonment for life upon conviction and that the investigation of the offence of which he was charged had been completed and no other charges had been laid against him since. Annexure ‘A’ attached to the affidavit filed by Rhoda Michelle Pankov is the evidence against the accused. The substance of the evidence is that the accused was armed with a SLR rifle when the robbery took place. After the robbery, the accused was seen leaving Sam Kula’s premises then cocked his rifle and pointed it against the victim’s son and began to use abusive language. The accused again threatened the victim’s son and fired two shots in the direction of the victim’s son who had ran away from the premises and the accused and his accomplices. In keeping the balance between the personal liberty of the accused and the broader interest of the community and the public interest in preventing absconding or interfering with witnesses if bail is granted, the accused needs to show that I can trust him that he will not abscond or interfere with witnesses in the Gold Ridge area in the face of the opposition by the Prosecution. (See Benedict Idu v. Regina, Criminal Case No. 046 of 2004, unreported). The accused deposed that before his arrest he attended court to see his one-talks appearing in court to face allegations against them but as pointed out by Counsel for the Prosecution, Mr. Cauchi, that fact would not be relevant after his arrest for obvious reason. Counsel also referred to the remarks made by the Palmer, CJ in Ross Piu v. Regina, Criminal Case No. 54 of 2004 where His Lordship said that each case must be considered on its own merits, thus dismissing comparison of similar cases for the purpose of obtaining bail. Counsel also said that whilst he appreciated Counsel for the accused, Mr. Swainson’s, plea for the recognition of the accused’s constitutional rights to bail, he said it was overstated by Counsel for the accused. He said the correct position was that the accused was presumed innocent until proven guilty by a court of law. He said that in this case, the investigation of the offences having been completed the next step was to ask for the Preliminary Inquiry to take place a thing that could be done at the next appearance in the Magistrate’s Court. I have found nothing in the evidence of the accused to persuade me to exercise my discretion in favour of the accused. On the whole, the picture presented by the Prosecution is that it would not be wise to release the accused at this stage. I have taken into consideration the accused’s family circumstances and the arguments made by his Counsel on his behalf but I feel that the community’s interest and the public interest in ensuring the accused is not given the opportunity to abscond or interfere with witnesses does outweigh the accused’s personal liberty in this case. The accused has failed to demonstrate by evidence that the balance between the community and the public interest as against his liberty not to be detained should be tilted in his favour. In the result, the bail application is refused. It is dismissed.

F.O. Kabui, J.