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State v Vusonitokalau [1996] FJHC 144; Hac0005D.96s (2 September 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0005 OF 1996

THE STATE

v

FELIX KEATH VUSONITOKALAU

Counsel: Mr. J. Naigulevu for the State
Mr. V. Nathan for the accused

Hearing: 28th August 1996
Decision: 2nd September 1996

ORAL RESERVED DECISION OF PAIN J.
ON APPLICATION FOR BAIL

The accused is charged with murder. The trial is due to commence on 9^th September 1996. Until very recently the accused has been unrepresented. He now has legal aid counsel.

By handwritten notice dated 22nd August 1996 and filed in this Court on 28th August 1996 the accused applied for bail.

The principles regarding grant of bail murder cases are well settled. They have been reviewed in a number of recent cases in this court including my own decision in Kaylesh Chandra v The State (Misc. Appln. 5 of 1994, Decision 24th June 1994). I do not propose to review those principles. Suffice it to say that bail is rarely granted and only in exceptional circumstances. However that is subject to an overriding constitutional right of an accused to be released where there is unreasonable delay.

The charged arises out of an incident in which the accused is alleged to have stabbed a man with a knife. The knife penetrated the victim's heart causing death. There are no exceptional circumstances relating to the offence or the accused that would justify the grant of bail. However in his application the accused has specifically raised the issue of delay. He says in paragraph 4 of his application:

"I am being victim of delay in administration and I believe, in principle, section 11 of our 1990 Constitution is to protect a person charged from inordinate delays between charge and trial."

The Constitution of Fiji is the supreme law of the land (Section 2). As such, it must be upheld and enforced. This Court has specific jurisdiction in any proceedings lawfully brought before the Court, to determine whether any provision of the Constitution has been contravened (Section 113(2)).

Section 11(1) of the Constitution provides that a person charged with a criminal offence shall be given a fair hearing within a reasonable time. Section 6(5) provides that if any person detained on reasonable suspicion of having committed an offence is not tried within a reasonable time, then he shall be released. That release can be upon conditions, particularly such conditions as are reasonably necessary to ensure that he appears at a later date for trial.

The issue be determined on the present application is whether there has been a contravention of these rights given to the accused which now justifies his release on bail.

The accused is alleged to have committed the offence on 2nd December 1994. He was charged in the Magistrates Court on 5th December 1994 and remanded. On 23.2.95 a preliminary inquiry was held in the Magistrates Court and the accused was committed to this Court for trial. However the depositions were not received by this Court until the 16th May 1996. An information was then filed by the Director of Public Prosecutions on 4th July 1996. A fixture for the trial has been made for 9th September 1996.

The accused has now been held in custody for one year and nine months without trial and through no fault on his part. That is an inordinate delay that is totally unacceptable. Taking into account normal remission it is equivalent to a sentence of over 2 ½ years imprisonment.

An analysis of the various steps taken in the prosecution shows that this delay has substantially occurred in the Magistrate's Court. There was an initial delay of 2 ½ months before the Police were ready to proceed with the preliminary inquiry. There was then an incredible delay of 1 year and 3 months before the depositions tendered at that preliminary inquiry were forwarded of by the Magistrate's Court to this Court. The Director of Public Prosecutions then filed an information and the trial is to take place in this Court two months after the filing of the information.

I repeat the remarks that have already been made on several occasions in this Court but have gone unheeded. Such lengthy delays in processing files following preliminary inquiries in the Magistrate's Court is totally unacceptable. It is anathema to the proper and timely administration of criminal justice. Not only does it infringe upon an accused's rights but it can also be unfair to both prosecution and defence. The legal system must promote the speedy disposition of criminal cases in the interest of justice. Furthermore the delays in sending committal papers to this court is increasing and compounding. This will inexorably result in delays in hearing trials in this Court when the considerable backlog of files is finally received.

Clearly, in this case there has been inordinate delay. The accused has not been tried within a reasonable time. He has not contributed to that delay in any way. He has been meekly waiting in prison for 21 months for his trial to be heard. There has been a contravention of the provision s of the Constitution and in terms of Section 6(5) thereof the accused has a right to be granted bail. The Constitution says that in these circumstances he shall be released.

Counsel for the State argued that the time that will elapse before the hearing is a factor that should be taken into account. I found some attraction in his pragmatic submission that bail should be refused as the trial would be starting in only 10 days. On reflection I realise that it would be quite wrong in principle to refuse bail on that ground. There has been a clear breach of the accused's constitutional right. That should not be condoned or exacerbated by the Court. The Court has a duty to remedy the situation immediately. The violation of a citizen's right for a period of only one day would still be a day too long. The accused is entitled to an immediate release on bail.

The application is granted. The accused is allowed bail on the following terms.

1. On his own recognisance for the sum of $1,000 with one surety for $1,000.

2. To report to Raiwaqa Police Station on Tuesdays and Fridays between 7 am and 6 pm.

3. To reside with his mother at 20 Chang Place, Raiwaqa.

4. No to communicate in any way with any prosecution witness.

JUSTICE D.B. PAIN

HAC0005D.96S