IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO. HAM0001.2003

BETWEEN:

STATE
APPLICANT

AND:

MELANIA LEWAQILAQILA TUNIDAU
RESPONDENT

JUDGMENT ON APPEAL AGAINST BAIL

On 30th December 2002 the Suva Magistrate’s Court granted bail to the Respondent, a fugitive in respect of an extradition request by the United States of America. The extradition proceedings are in respect of 23 counts of theft and forgery related offences to which the Respondent pleaded guilty on the 7th of March 2000, but in respect of which she absconded before sentence was passed. Sentence was due to be passed on 25th April 2000.

The Director of Public Prosecutions appeals against the granting of bail.

The extradition proceedings

The application for a provisional warrant was made on the 7th of January 2002 and was granted on the same day. According to the Magistrate’s Court file, the Respondent first appeared on the 27th of February 2002. Thereafter there were a number of adjournments for which no reason is given on the court file. However, on 26th April 2002, the Respondent applied for bail. It was refused on 1st May 2002.

On 15th May 2002, counsel for the Respondent informed the learned Magistrate that he had made an application for judicial review in respect of the proceedings, in the High Court. Those proceedings were doomed to fail because of the High Court’s earlier decision in State v Minister for Foreign Affairs Ex-Parte Reginald Allen Lyndon JR 43/2002 that there was no right to be heard at the stage before authority to proceed was issued by the Minister. The judicial review proceedings caused a further delay of proceedings in the Magistrate’s Court.

On 10th July 2002, the Respondent made a further application for bail. The State objected. Bail was refused after the learned Magistrate asked for a motion to be filed supported by affidavits. On 7th August 2002, counsel who was then appearing for the Respondent, sought and received leave to withdraw. The matter was adjourned to the 21st of August 2002 for Mention. On that day Mr. D. Sharma appeared for the Respondent and the 4th of September was set for mention to be set a committal date.

On the 4th of September counsel for the Respondent did not appear. Counsel for the State said that counsel for the Respondent wanted a two weeks adjournment and that State counsel did not object. On the 18th of September 2002 counsel for the Respondent confirmed that he had received all committal papers and the matter was adjourned to 25th September, inexplicably for another mention date.

On the 25th of September, counsel for the State asked for a November date for committal. Counsel for the Respondent agreed saying that he wished to make submissions in respect of section 6(3) of the Extradition Act. The matter was next called on 23rd October 2002, but there was no appearance by the counsel for the Respondent. A mention date was assigned for the 6th of November. On the 6th of November counsel for the State said that all documents had not been served on the Respondent and that the 25th of November should instead be assigned for committal. Counsel agreed and the matter was adjourned for hearing to the 26th of November 2002. Counsel for the Respondent again applied for bail, saying the Respondent had now been in custody for 8 months. The State objected. The application was refused.

On the 26th of November 2002, the State was ready to proceed. Counsel for the Respondent was not, saying he needed more time to consider the DPP’s submissions. The matter was adjourned to the 9th of December for committal. On the 9th of December, both parties were ready to proceed. The court was not, and it adjourned the matter to the 23rd of December 2002 for oral and documentary to be led. On the 23rd of December State counsel said that they had filed written submissions but the defence had not replied. The court then adjourned the matter to the 6th of January 2003 to be heard by another magistrate. No reason was given for the re-assignment, although both counsel told me at the heading of this appeal, that there was some dispute over the manner in which the duly authenticated documents should be tendered.

The Respondent made another bail application. Counsel was asked to make it in writing.

On 30th December 2002, the matter was called before the same Magistrate (so presumably the file had not in fact been re-assigned) and State counsel said he continued to rely upon the affidavits formerly filed by the State in opposition to bail.

The learned Magistrate ruled as follows:

RULING

“This is an application by Ms. Melania Tunidau, for bail.

Through her solicitors, she has filed a motion, dated 27.12.2002. She is asking for bail. She also filed an affidavit in support of the motion, dated 27.12.2002. I have carefully read the motion and affidavit in support.

The Defence has also filed a written submission, this morning. In the same, they outlined their submission.

The State, has stated, it does not intend to file an affidavit in reply to the Defence’s affidavit, dated 27.12.2002. The State stated, they will rely on Defence Sgt 389’s affidavit, dated 23.4.2002.

I am aware of this, in the same, that I was the one, who made the original decision to remand Ms. Tunidau in custody. At the time, it was my belief that the committal process, would be completed as soon as possible. As of today, i.e. 30.12.02, the committal process has not been finalized. There appears to be a lot of technical problems that has to be sorted by the prosecution, the defence and the Court, before the committal process, could be properly completed.

Mr. Sharma, has called in aid, Section 27 (3) (c) of the Constitution of the Republic of Fiji. As is well known, the Section is the Supreme law of the land. It States that a person who is detained should be released on acceptable terms and condition pending trial, unless the interest of justice requires otherwise.

This section basically re-affirm the common law, position in Fiji, as recognized in Bechu’s case, correctly cited by Mr. Sharma – i.e. A person should be granted bail unless he will fail to appear in Court on the trial date.

The affidavit by Sgt 389, dated 23.4.02, covers a situation which existed, prior to Ms. Tunidau being remanded in custody.

In my view, the situation has largely changed. I don’t see any good reason why this person, Ms. Tunidau, should be remanded in custody, any further.

I am persuaded to accept the position advanced by the defence, given the motion, the affidavit in support, the submission filed by them and the non production, of any affidavit in reply by the state.

I therefore grant Ms Tunidau bail on the following conditions:

(i)	she is released on a $6,000 bail;

(ii)	She is to reside at c/- Mereseini Avaiki, Lot 9 Craig Place, Vatuwaqa, Suva. Phone No. 3385635;

(iii)	She is to report to Vatuwaqa Police Post everyday between 6 am and 6 pm;

(iv)	She is to surrender all her travel documents, including any passport, to the Court, 3 days from today;

(v)	She is to attend the Court when required;

(vi)	If Ms. Tunidau breaches any of the above conditions, she will be remanded in custody immediately;

(vii)	The prosecution to advise Immigration Department that Ms. Tunidau is not to leave Fiji until this proceeding is completed.

This matter is adjourned to 10.1.03 mention to set a committal date.”

Bail was therefore granted on the basis that the situation had changed from the time of the last refusal of bail, and since the filing of the affidavit of Sgt. 384 Luke Navela on 23rd April 2002.

The matter was then adjourned to the 10th of January 2003 for mention to set a date for committal. On the 10th of January, the matter was adjourned to the 13th of January 2003 for mention. That remains the current status of the case. No committal date has been set and the learned Magistrate continues to have conduct of the matter. 

The grounds of appeal

The grounds of appeal are as follows:

(i)	That the learned magistrate erred in law and in fact failed to adequately consider the nature and history o the proceedings including the granting of adjournments upon the Respondent’s applications.

(ii)	That the learned magistrate erred in law misdirecting himself on the ‘primary test’ in bail cases: Tak Sang Hao v. The State Misc Action No. HAM 003 of 2001S; Shi Jie v. The State Misc Application No. HAM 005 of 2001

(iii)	That the learned magistrate failed to properly evaluate the evidence adduced and which were in the court’s custody together with the evidence contained in

(iv)	Appellant’s submissions on the totality of affidavit, and the authenticated documents.

(v)	That the learned magistrate’s failed to properly appraise himself of extradition procedures contributing to the delay, and authorities on issues of delay and trial within a reasonable time: Ashok Chand v. The State Misc. HAM 012 of 1995; Waisake Tuivuya v. The State Misc. No. HAM 40 of 2002S.

(vi)	That the learned magistrate erred in law and fact when he failed to take into account the special nature of extradition proceedings and the principles governing bail in such cases, and the history of the Respondent’s conduct in evading lawful authority.

Submissions

Both counsel filed helpful submissions. State counsel submitted that bail should only be granted in extradition cases in the most exceptional cases because the fugitive in all cases had been shown to have failed to appear in court. He said that the learned Magistrate had failed to consider this important principle in relation to bail in extradition cases and that the learned Magistrate had also erred in failing to consider the history of the case and the reasons for the delay when granting bail. 

Counsel for the Respondent submitted that there was no right of appeal against a grant of bail in the Magistrates Court, in extradition cases, and that this court does not therefore have jurisdiction to entertain this appeal. He further objected to an affidavit filed by Pita Koroi Bulamainaivalu (without leave) saying that in an appeal case, the High Court should rely only on the court record. Finally he submitted that given the 10 months delay in proceeding to committal, the grant of bail was entirely justifiable and correct in principle.

Jurisdiction

Section 9(2) of the Extradition Act Cap 23 provides:

“For the purpose of proceedings under this section, a committal shall have the like jurisdiction and powers, as nearly as may be including power to remand in custody or on bail, as a Magistrate conducting a preliminary inquiry.”

Section 108 of the Criminal Procedure Code provides as follows:

“(1)	Subject to the pronouns of section 26, where any person, other than a person accused of murder or treason, is arrested or detained without warrant by a police officer or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court, to give bail, such person may in the discretion of the officer or court be admitted to bail with or without a surety or sureties and in the case of a court, subject to such conditions and limitations as the court may think it fit to impose.” (my emphasis)

In 1998 section 108 was amended by repeal of the old section 108(3) (which gave the High Court original jurisdiction to grant or reduce bail) and substituted the following (Act No 37 of 1998):

“(3)	All grants or refusals of bail and all orders conditions or limitation’s made or imposed under this section are appealable to the High Court upon the application either of the person granted or refused bail or of the Director of Public Prosecutions.

(4)	The High Court may –

(a)	in its original jurisdiction grant or refuse bail upon such forms as it considers just.

(b)	on an appeal under sub-section (3) confirm, reverse or vary the decision appealed from”.

The question is, does the grant of bail under section 9(2) of the Extradition Act also a grant of bail under section 108 of the Criminal Procedure Code in respect of which there is now a right of appeal?

Section 108(1) itself is not restricted to Penal Code offences. It clearly applies to all persons who are “brought before the court”. It applies to persons charged under the Minor Offences Act, the Public Order Act, the Trade Disputes Act, the Exchange Control Act, and a host of other Acts of Parliament in respect of which the Magistrates have jurisdiction. Further the Extradition Act specifically gives to magistrates the same powers as a committing magistrate in criminal proceedings including the power to remand or grant bail. It follows that rights of appeal in respect of bail are those granted by section 108(3) of the Criminal Procedure Act.

It is correct that the Extradition Act is a special piece of legislation and that although Magistrates have the same powers as committing magistrates, they are not expected to follow the same procedures. (Fatiaki J in Helmet Kasper Paul Rutten Misc App No. 6 of 1992).

In Helmet Paul Kasper Rutten v State Criminal Appeal No. 1 of 1992 the Court of Appeal considered whether there was a right of appeal against the dismissal of a habeas 
corpus application in the High Court, subsequent to a committal into custody of a fugitive under the Extradition Act. Counsel for the Respondent pointed to the following passage on page 4 of that judgment (per Helsham P) as supporting his argument that there is no right of appeal from a grant of bail in an extradition case:

“It is probably true to say that extradition matters dealt with under the Extradition Act would be categorised as “criminal proceedings”. If one needed to describe them they provide for apprehension of a person, a hearing before a Magistrate, incarceration, deportation. There is no appeal from, a Magistrates decision.”

However a full reading of the judgment shows that the appeal was about rights of redress against an order for committal. It did not deal with bail at all. In that case the Court of Appeal held that after committal, the fugitive had the right to apply for one of the prerogative writs and that extradition should not be formally effected until any appeals in respect of the prerogative writs had been disposed of. That appeal did not consider the question of rights of appeal against bail and therefore is of limited relevance to the issue raised by counsel. 

In Reginald Lyndon v State (supra) Byrne J considered an application for bail by a fugitive saying that it was, in effect an appeal against the refusal of bail by the Magistrate. Bail was refused.

In these circumstances, and for the reasons I have given above, I consider that rights of appeal under section 108(3) of the Criminal Procedure Code are available for both fugitive and State in extradition hearings, and that I therefore have jurisdiction to entertain this appeal. I note that in R v Spilsbury (1898) 2, QB 615 the Queens Bench Division of the High Court found an inherent power to grant bail to a fugitive committed to custody after the committal hearing. In the absence of any statutory provision I would be reluctant to find such an inherent power to consider an application by the State to reverse a decision to grant bail, because the right of the State to remand should not be inferred in the absence of clear statutory provisions. However I consider that section 108 (3) does provide for a right of appeal against the grant of bail in all criminal proceedings including those under the Extradition Act. I therefore turn to the appeal itself.

The grounds of appeal

The State has filed an affidavit setting out the history of the case. This step was presumably taken because in the short time between the grant of bail and the hearing of this appeal the certified court record could not be obtained. However, the Magistrates Court very swiftly provided me with the court file itself and I have been able to read the record for myself. I have also read the relevant parts of it to counsel. In the circumstances it has not been necessary to rely on any parts of the affidavit of Pita Koroi Bulamaireivalu and I have disregarded it for the purpose of this appeal.

The grounds of appeal can be summarised thus: The Learned Magistrate erred in granting bail without considering the nature of extradition proceedings and the reasons for the 10 month delay in the case.

In Spilsbury (supra) the Court said that the power to grant bail in extradition cases “ought to be exercised with extreme care and caution.” In Reginald Allen Lyndon (supra) Byrne J said that bail should be refused although the fugitive had been in custody for 12 months, because of the nature and seriousness of the charges against him.

Prima facie, the test for the grant or refusal of bail must always be whether the accused will appear for trial. Matters which might assist the court in coming to any conclusion would be whether bail had been refused previously, the seriousness of the charges, the likelihood of re-offending, and of interference with prosecution witnesses, the accused’s character, the possibility of further charges, the accused’s right to properly prepare his/her defence and any previous failure to attend court.

In this case, the Respondent is a fugitive. She pleaded guilty to several fraud-related offences in the United States and absconded before sentencing. It took several months, and much resources to find her and arrest her on provisional warrant (the affidavit of Sgt 389 Luke Navela, on the court file) and the case is yet to be finalised largely because of her own counsel’s decision to pursue an ill-fated judicial review application in the High Court, and his lack of readiness for the committal hearing.

The earlier refusals of bail are relevant. In his ruling dated 1 May 2002, the Learned Magistrate said:

“While in Fiji it took the police approximately 2 months to locate and bring her before the Courts. According to the prosecution, the accused deliberately avoided the police by using various alias, as her name. In my view, by her own actions ie running away from a USA Court, she has shown that she could not be relied on to appear in Court, when requested. I therefore reject her application for bail”. 

In what way has this position changed? As her counsel said, the only difference in the situation now is that the Respondent has been in custody for 10 months and no committal date has been set.

As I have already said, the history of the adjournments in this case shows that much delay was caused by the Respondent’s own counsel. The judicial review application (described by Pathik J as “not only premature and misconceived but ….also frivolous”), the withdrawal of counsel and the lack of readiness of counsel on two days set for hearing, caused considerable and unnecessary delay in proceedings which ought to be heard expeditiously. The last vacation of the hearing date is inexplicable as is the re-assignment to another magistrate. Both counsel informed me that Learned Magistrate informed counsel that the authenticated documents were to be tendered by a witness in accordance with the practice in a preliminary inquiry, and that State counsel disagreed and asked for the matter to be heard by another Magistrate. If this is so, it is difficult to understand. Firstly, the documents, if they are properly authenticated under section 13 of the Extradition Act, are statements on oath and are admissible in themselves, just as an affidavit is. Secondly, there is no purpose achieved in having the documents tendered by a police officer who did not authenticate the documents, knows nothing of their truth or otherwise, and cannot be cross-examined on their form or substance.

Lastly, it is clear since the decisions of Sheehan J in Tota Ram Civil Action No. 750 of 1986 and Fatiaki J in Rutten (supra) that although magistrates have the same powers as committing magistrates under the Criminal Procedure Code, the provisions for the admissibility of statements do not apply to authenticated documents under the Extradition Act. The issue being well-settled, I fail to see how a dispute of this nature, with both parties well-represented and no doubt well-armed with these authorities, could have led to a vacation of the hearing date. There is no mention of this incident on the court file and in any event, it now appears that that case has not been re-assigned.

I do not consider that the delay in this case was attributable in whole or in part to the State. Indeed the court file shows that the delay is attributed to counsel for the Respondent and in part to the court itself. 

Clearly the answer is to proceed to committal as soon as possible. As to bail, the State has already shown the Respondent’s failure to appear in court for hearing. The Learned Magistrate accepted this and refused bail. There, has been no substantial change in circumstances to justify the grant of bail. There is a real danger that the Respondent will abscond again. The fact that the State filed no further affidavit after the earlier affidavit of Sgt. Navala, is irrelevant, because there is no change in circumstances since the filing of the affidavit. The 10 months delay is due, not to the State’s lack of preparation, but to the way in which counsel for the Respondent has handled the matter. It is also due partly it appears, to a real misunderstanding as to the nature of extradition proceedings.

I find that the Learned Magistrate erred in law in granting bail in this case.

The State’s appeal is allowed. The Respondent must be taken into custody forthwith to appear at the committal hearing. I urge counsel and the Suva Magistrates Court to prioritize this case and to proceed to hearing as soon as possible. 

Nazhat Shameem
JUDGE