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Penei v Regina [2008] SBHC 81; HCSI-CRC 413 of 2008 (16 December 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 413 of 2008

IN THE MATTER OF: an application for bail

BETWEEN:

BEN PENEI
Applicant

AND:

REGINA
Respondent

Date of Hearing: 12 December 2008
Date of Judgment: 16 December 2008

Mrs. K. Anderson for Applicant
Ms. R. Townsend for Crown

DECISION ON BAIL

Cameron PJ.

1. The applicant Ben Penei is charged with murdering his father in law John Loki on 4 October 2008. it is said to have taken place of Baenga Village, Santa Cruz Island in Temotu Province. The applicant was arrested on 6 October 2008 and has remained in custody since. He now applies for bail.

2. Briefly it is said to have started with a domestic argument between the applicant and his wife, who was heavily pregnant at the time. This escalated to the poinit where the applicant started chasing his wife with a piece of timber. His wife ran past her father John Loki, who was building a house nearby, and when he heard her screams and saw what was happening he intervened to try and protect his daughter. A struggle between the applicant and the father ensued, during which it would appear the father suffered a blow to his head. Following this, he was able to walk away and resume his building work, but he collapsed and died shortly afterwards.

3. The primary Crown witness to the actual struggle is the wife's 8 year old brother, Selwyn Loki Ngalir, who is a son of the deceased. He gave a statement to police in which he stated that he saw the applicant fighting with his father and that the applicant his his father on the ear and the deceased fell down. He said his father was holding a small piece of timber of about 30 centimetres in length. The statement does not say with what the applicant hit the deceased.

4. The applicant's wife also gave a statement in which she said she saw the two struggling, but it seems that she did not witness the entire struggle and did not see any punching and whipping.

5. There are no other witnesses to the struggle.

6. The defence suggests that the Crown case is relatively weak. However, Selwyn Ngalir witnessed the fight between the applicant and his father and has made a relatively detailed statement about what he says happened. There is also other evidence pointing to the deceased having received a blow to his forehead, and inferentially the Crown will say this must have been inflicted by the applicant. I agree with Ms Townsend's assessment that the Crown case against the applicant is moderate to strong.

7. The proposal is that the applicant, if bailed, will live at his uncle's hose at Vavaya Ridge, Honiara. He also has a brother living on Skyline, and wider family in Honiara.

8. However I consider that the dislocation of the defendant from Temotu Province, and indeed his immediate family, is not likely to sit well with him if bailed. He is used to living a subsistence lifestyle on Santa Cruz Island, helping his wife in the garden and fishing. I consider there is likely to be a strong incentive for him to flee to Temotu Province if given the opportunity, especially as he now knows the Crown case against him is considered moderate to strong. He also knows that if convicted of murder he will receive a mandatory sentence of life imprisonment.

9. The apprehension of the applicant absconding would not be alleviated by requiring that he be bailed to an address in Temotu Province. That would simply add to the factor of the risk of interference with witnesses to the mix.

10. The application for bail is declined.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge