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State v Tanidrala [2005] FJHC 205; HAM0042D.2005S (29 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0042 of 2005S
& Crim. App. No: HAA0096 of 2005

Between:

THE STATE
Applicant

And:

ANASA QIOLELE TANIDRALA;
SIRELI ROBALENAIVALU; and
NAVITALAI VECENAVURA
Respondents

Hearing: 28th July 2005
Ruling: 29th July 2005

Counsel: Mr. W. Kuruisaqila for State
Ms B. Malimali for 1st Respondent
Mr. V. Vosarogo for 2nd & 3rd Respondents

JUDGMENT

This is an appeal by the State against the three Respondents by the Magistrates’ Court at Valelevu. The petition of appeal states that the Respondents were charged with the murder of Chan Kin Yee on the 1st of June 2005, and with the robbery with violence on Lixi Aoli on the 28th of May 2005. The case was called at the Valelevu Magistrates’ Court on the 28th of June 2005 when there was no appearance by State counsel. Instead a police prosecutor appeared without the file. Counsel for the Respondents made an application for bail. In the absence of any submissions from the State, or from the defence, the learned Magistrate then granted bail to all Respondents, on conditions.

The Director of Public Prosecutions appeals against the order granting bail on the following grounds:

(a) that he denied to the Appellant natural justice by refusing to stand the case down to allow time for State counsel to attend court;

(b) that he denied to the Appellant natural justice by refusing to entertain submissions by the police prosecutor;

(c) that he granted bail to the accused persons without requiring that they provide:

• (i) formal notice to the State that an application would be made;
  
• (ii) evidence in affidavit form.
  

(d) that he exercised his discretion to grant bail and failed to regard or give adequate weight to:

• (i) the seriousness of the offences particularly murder;
  
• (ii) the fact that the accused had pleaded guilty.
  

(e) that he [wrongly] exercised his discretion in granting bail in all the circumstances of the case.

The court record, which was sent to the High Court with commendable speed, shows that the case was first called on the 1st of June 2005. State counsel appeared. All Respondents were advised of their right to counsel but they waived it. The charges were read to them and they pleaded guilty. The case was then adjourned to the Nasinu Court for disclosure to be served, and for the Respondents to instruct counsel if they wished.

On the 14th of June, Mr. Vosarogo appeared for all Respondents. No one appeared from the DPP’s Office, but the police prosecutor asked for the matter to be stood down for State counsel to appear. By 10.45am, the DPP’s Officer had still not appeared. Defence counsel asked to have the guilty pleas vacated and the case was adjourned for mention to the 28th of June 2005.

On the 28th of June, Mr. Vosarogo told the court that Ms Malimali now appeared for the 1st Respondent and that despite the absence (again) of State counsel he wanted the guilty pleas vacated, and disclosure to be completed. He also asked for bail. The record then reads:

“Prosecution:

I am not in a position to say anything as I don’t have the file.

Court:

Ms Malimali now makes an appearance for Accused 1. Ms Malimali also asks for bail for her client.

Court:

This is the 2nd time prosecutors from DPP have failed to appear and police prosecutors have been virtually forced by the court to make an appearance for DPP.

It is an unsatisfactory situation as emphasised by Mr. Vosarogo on behalf of Accused 2 and Accused 3. Both Mr. Vosarogo and Ms Malimali had asked for bail for their clients. Mr. Vosarogo certainly asked for bail on 14.6.05. In the absence of DPP Prosecutor, I decide to grant bail $500 each with the following conditions:

(i) all accused to report to Nabua Police Station Mondays, Wednesdays and Fridays 6am – 6pm.

(ii) not to interfere with prosecution witnesses.

(iii) not to change their residential addresses without informing police.

(iv) not re-offend while on bail and if they do their bail will be cancelled and accused will be remanded.

I also order that guilty plea for all accused are to be vacated and 2nd phase disclosures to be served.”

At the hearing of this appeal, State counsel sought to adduce further evidence in two ways. One is by filing the affidavit of Sgt. 1313 Frances Simpson, the police prosecutor in court on the 28th of June 2005. He said that he asked to have the case stood down to allow a DPP’s officer to appear from Suva, that Mr. Vosarogo objected and the application was denied. He also said that he objected to bail on the ground of the seriousness of the offences but that the learned Magistrate refused to hear him without the file.

Counsel for the Respondents have no objection to these affidavits being filed, but say that where it is inconsistent with the court record, the record should prevail. Further, in response, they have filed the affidavits of the 1st Respondent, the 2nd Respondent and one Akeneta Tanidrala who is the surety for her son the 1st Respondent. These affidavits are filed in response to the affidavit of Sgt. Simpson and materially contradict the contents. In particular the Respondents say that the police prosecutor never objected to bail, and even if he did, he was not aware of the case and could not have made a proper objection. Since there is no agreement as to the events in court on the 28th of June 2005, I consider myself bound by the court record. I disregard all affidavits filed.

The State also seeks to call oral evidence from the investigating officer in the case, to oppose bail, and to explain why bail should not have been granted. For the reasons which I give later in this judgment, this application, which is strenuously opposed by counsel for the Respondents is also refused. It is not necessary to hear that evidence in the hearing of this appeal.

Natural Justice

Grounds (a) and (b) of the grounds of appeal, allege a serious breach of natural justice, in the granting of bail without hearing from the State. State counsel referred in particular, to the decisions of the High Court of Australia in Kioa and Others v. Minister for Immigration and Ethnic Affairs and Another [1985] HCA 81; 62 ALR 321 and Annetts and Another v. McCann and Others 97 ALR 177, to submit that where there was the denial of natural justice to a litigant, the resulting decision was a nullity. In Michael Anthony Lewis [1988] HCA 24; (1988) 34 A Crim. R. 212, the High Court considered the decision of the Court of Criminal Appeal (Northern Territories) to grant leave to appeal and allow an appeal against conviction without giving the Crown a opportunity to be heard. Although the Court refused special leave, it did hold that the Crown had been denied natural justice. Judgment however was not set aside because the setting aside of an acquittal was an exceptional proceeding. The Court said at page 216 that:

“Once it be conceded, as in our view it must be, that the Crown counsel was denied an opportunity to make a general summation of the evidence with a view to demonstrating that notwithstanding the submissions advanced for the respondent the verdict was neither safe nor satisfactory, then it must follow that the proceedings were marked by a serious irregularity in procedure whereby the Crown was denied natural justice. The Crown is as much entitled to natural justice as any other litigant.”

If these principles are valid in all criminal proceedings, they must be of even greater importance under the Bail Act. So specific are the relevant considerations for the grant or refusal of bail under the Act, that the deciding court must, perforce, hear submissions from both prosecution and defence.

Section 17 of the Bail Act provides that the primary consideration is the likelihood of the accused person appearing in court. Section 18 provides that a person opposing bail must deal in his/her submissions with three factors; the likelihood of surrender to custody, the interests of the accused person, the public interest and the protection of the community. These factors are set out in greater detail in section 19 of the Act, and although these factors need only be regarded where bail is refused, some consideration of the public interest and the protection of the community is necessary for the setting of bail conditions under section 21 of the Act.

The charges in this case are serious. The inherent danger in releasing accused persons on bail where serious acts of violence are alleged, is that the accused persons will pose a threat to members of the community, the victim of the violence and witnesses for the prosecution. Such a danger is not inevitable, but the court needs to enquire, and satisfy itself that the public interest will not be endangered by bail, with or without conditions. Bail in cases of alleged murder is not unheard of. The High Court has granted bail in cases of murder recently, and the magistrates certainly have jurisdiction to grant bail in all cases. However, before granting bail and conditions, the state must be heard on the effect of bail on the immediate community and on the public at large. The State must be heard on the character and antecedents of the accused, to ensure that he will not re-offend whilst on bail, nor refuse to surrender to custody. Granting bail without giving the State an opportunity to be heard, particularly in cases of alleged murder or robbery or other types of violence, can have serious prejudicial effects on the public interest. Clearly, State counsel should have been heard.

Counsel for the Respondent pointed out, quite correctly, that State counsel should not dictate to the court when and how it should sit. In particular when State counsel fails to appear in court, he or she must take the consequences of the hearing proceeding in his/her absence. I agree with him entirely. The authorities on the discretion to adjourn make it quite clear that the discretion to adjourn must be exercised judicially taking into account all relevant factors. However, where shutting out State counsel means the shutting out of the public interest, justice is denied to the public. And, at the end of the day, confidence of the public in the courts is what legitimises the institution of the courts. In this case, counsel for the Respondents concede that the learned Magistrate would not have been just had he proceeded to hear a bail application in the absence of counsel for the accused. They are right to make that concession. Frustrating though it is for members of the bench to constantly adjourn at the apparent convenience of counsel, a refusal to adjourn can have dire consequences on the interests of the litigant. It is unjust to punish the litigant for the faults of counsel.

Clearly, the learned Magistrate was in error in proceeding to grant bail in the absence of State counsel’s submissions. The record does not indicate that the police prosecutor attempted to object, but if the learned Magistrate did not want to wait for State counsel, he should have given Sgt. Simpson time to obtain proper instructions on bail from the investigating officer. It appears that he granted bail without hearing submissions from either defence or prosecution. Clearly the recorded reason, that he did so “in the absence of DPP prosecutor” is not a relevant consideration under the Bail Act. His decision to grant bail is therefore quashed and all Respondents are forthwith taken into custody.

State counsel requests that I consider bail afresh. I do not consider that that is an order I can make on appeal. I have quashed the order granting bail, and the Respondents are now to be remanded in custody. If they are to re-apply for bail, they must make another application in the Magistrates’ Court. On this occasion, the State is to be heard, and to be given the opportunity to call the evidence of the investigating officer. The defence must then be given an opportunity to respond before a ruling is made. This bail application should be made afresh before another Magistrate. For these reasons, I will not proceed to consider the remaining grounds of appeal as that may interfere with the presiding Magistrate’s discretion on bail.

This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
29th July 2005