AND: THE STATE
Respondent
Mr S. Valenitabua for Applicants
Mr V. Vosarogo for Reor Respondent
Hearing:19th September 2001
Decision:20th Septem001
DECISION
This is the third application for bail pending trial made by the Applicants in this case. Counsel for pplicants says that the onle
only real difference between this application, and the previous applications, is that he now represents the Applicants (for bail
only) and that his submissions are more comprehensive than those previously made.
The application is made on the basis of unreasonable unconstitutional delay, and is supported byaffidavit of Waisake Nacoro, the Third
Applicant. The affidaffidavit states that the Applicants were charged with murder on the 2nd of May 2000, and were committed for
trial on 29th August 2000. Information was filed on 4th February 2001, and the hearing commences on 5th November 2001.
All Applicants have been in custody since May 200 (says the third Applicant) the delay was caused by the unavailability of puisne
judges to s to hear the case.
This application is therefore based on the ground of delay. It is not suggested that the evidenceeak, or that the depositions do not
disclose the offences cces charged.
In his submissions, counsel for the Applicants referred to several High Court authorities on the grant of bail on the ground of delay.
Hd that the delay thus far, far, of more than 15 months, offended the Constitution and international criminal law, and in particular
offended the principle that accused persons must be tried within a reasonable time.
The State opposed the application, saying that there was no cut-off point for what is unreasonable delay, that the publierest has
to be balanced aged against the accused’s right to personal liberty, that murder is a serious offence and that bail should not be
granted because there were no exceptional grounds to justify bail in this case.
The High Court of course, has jurisdiction to grant bail for murder. The Magistrates’ Court does not. There is an amody of authority
saying thag that bail for murder should only be granted in exceptional circumstances. This is because the seriousness of the offence
demands custody pending trial in the public interest. However as Madraiwiwi J said in Timoci Naisake & Saula Matavucu -v- The State Misc No. HAM0010D.2000S in considering bail for murder after the defendants had been in custody for eight months:
“As regards the question oeptional circumstances in Archbold 36th Edition at paragraph 203, the learned author statestates that ‘it
is not usual to grant bail on charges of murder’. This was formerly the position at common law in Fiji although it has now been modified
by section 27(3)(c) of the Constitution which confers a right to bail “unless the interests of justice otherwise require”. In that
regard the Bail Bill currently before Parliament details the right conferred by constitutional fiat.”
And later, at page 3, his Lordship said in relation to section 108(3) of the Criminal Procedure Code:
ass=MsoNormal style="marginargin-top: 1; margin-bottom: 1">
“This provision must be construed in the light of section 27(3)(c)he Constitution as required by the section 195(2)(e) thereohereof.
Put simply the applicants are entitled to bail as of right “unless the interests of justice otherwise require.” There is therefore
a presumption in their favour which the respondent has to counter although whether this in fact changes the position in practice
is open to question.”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Bail was refused in that application, but was granted later after the defendants had spent about thirteen monthcustody.
What is clear from this case, and from State -v- Felix Vusonlau HAC005 of 1996, Ashok Chand -v- The State HAM006/1996 and J>Joeli Manuave -v- The State MA No. 11/1995 is that there is no length of custody served which automatically leads to a finding of unreasonable delay. Each case
must turn on its individual circumstances.
It is worth noting that the proposed Bail Act 2000, which was to be debated in Parliament before the political crisis of May last
year, regulated how the balance between the accused’s interests and the public interest, was to be determined. Section 3 of the Act
was to have provided that -
“Every accused person has a right to be released on unless it is not in the interests of justice that bail shol should be granted.”
Section 3(3) was to provide that, “there is a presumption in favour of the granting of bail to a person but a person who op the granting
of bail may smay seek to rebut the presumption.”
Sections 17, 18 and 19 of the proposed Act, provided that the primary consideration in considering bail is the likelihood of the accused
person appearing in court, and that a bail decision must refer to this overriding principle, and to the interests of the accused
person as well as the public interest and the protection of the community.
The proposed Bail Act therefore provides with greater clarity, the principles already set down by the High Court after the promulgation
of the 1997 Constitution.
In this case, the length of custody served when trial comm will be about 18 months. This is undoubtedly long, and the delay was never
of the Applicanlicants’ making. Changes in counsel, re-allocation of the court file from one judge to another, and difficulties with
the court diary were the apparent reasons for the delay. Section 27(3)(c) of the Constitution provides that every arrested or detained
person has the right to be released from detention pending trial “unless the interests of justice so require.”
It is for the State to show the court that the interests of justice require continued detention. In this case, I consider that the
State has discharged this burden. Firstly, the trial date has been set for November the 5th with pre-trial conference set for October
29th. Secondly, the offence is a serious one and public interest considerations in ensuring that suspects appear to stand trial,
are relevant. Thirdly, the Applicants do not suggest that the evidence is weak or non-existent.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In the circumstances, and for the reasons given in this decision, bail is refused.
Nazhat Shameem
JUDGE
At Suva
20th September 2001p class=MsoNormal align=rign=right style="text-align: right; margin-top: 1; margin-bottom: 1"> Ham0022d.01s
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