Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Vuniwa v The State [2005] FJHC 231; HAM0050D.2005S (17 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0050 of 2005S

Between:

PECELI VUNIWA
Applicant

And:

THE STATE
Respondent

Hearing: 11th August 2005
Ruling: 17th August 2005

Counsel: Mr. R. Gibson for State
Mr. A. Naco for Applicant
Mr. U. Ratuvili for Human Rights Commission
Ms K. Naidu for Attorney-General

RULING ON BAIL

The Applicant applies for bail pending trial. His trial is now fixed for hearing, for one month from the 15th of May 2006. He is charged with murder, and attempted murder, in relation to events relating to the takeover of Parliament in May 2000. He has been in custody since the 13th of May 2005, when he was first charged with the offences.

The grounds of his application are that the conditions of his custody at the Korovou Prison, are inhumane and degrading, that the trial will not proceed until May of next year, that there is nothing in his personal circumstances to suggest that he will not surrender to custody, that he requires a proper place to prepare his defence and that he has a stable family and fixed address.

When the application was first heard, on the 29th of July, counsel told the court that the Applicant was held in the Awaiting Trial Block, and the conditions were as they were when the High Court judges visited the Block in October 2004. He referred to the decisions of this court in Senijieli Boila and Pita Nainoka HAC0032 of 2004S, and State v. Eugene Tuni Ladpeter HAC0019 of 2004S and said that the Applicant was in inhumane and degrading conditions and should be granted bail forthwith.

State counsel submitted that on the last report he received from the Korovou Prison, and according to the affidavit filed on behalf of the State in the Magistrates’ Court on the 30th of June 2005, the Applicant was then in the Sacau Dormitory, which was found by the Human Rights Commission in Ladpeter to conform to the United Nations Minimum Standard Rules. He said that conditions of custody constituted only one factor to be considered on a bail application, and that the Applicant’s previous conviction (for wrongful confinement in relation to the events of 2000) and the seriousness of the offence, were sufficient to justify the refusal of bail. He pointed to the facts of the case as set out in the affidavit of Inspector Sekai Suluka of the Commissioner’s Special Task Force, and said that the Applicant was alleged to be directly involved in the murder of a police officer Filipo Seavula, and the attempted murder of another police officer. He further said that the court had been available to hear the trial in September or October of this year, but that a date next year was chosen to suit defence counsel’s convenience. The delay is therefore attributable to the defence, not to the court or the prosecution. He said that bail should be refused because the protection of the community and the public interest required the Applicant’s continued remand. He suggested however that if the conditions of the Applicant’s custody were to be properly considered by the court, a current report from the Human Rights Commission was necessary.

The Human Rights Commission was then made a party to these proceedings, as was the Attorney-General. The Commission visited the Korovou Prison on the 8th of August 2005 and submitted a full report on the Applicant. The report contains a checklist in relation to Rules 8, 9, 10, 11, 12, 15, 17 and 19 of the U.N. Standard Minimum Rules for the Treatment of Prisoners. These Rules are not new. They were approved by the Economic and Social Council of the United Nations, in July 1957. The findings were that the Main Cell Block was closed on the 1st of July 2005. On that day, all serving prisoners who had been kept there were transferred to the Sacau Dormitory. All the remand prisoners, including the Applicant, were transferred to the Awaiting Trial Block. The Applicant shares his cell with two others. This is necessary because there are 60 remand prisoners and only 28 cells. The Applicant’s two cell-mates are Saimoni Rokotunidau who is charged with robbery and assault in HAM 20 and 52 of 2005S and one Nilesh Chandra who is awaiting extradition to New Zealand. All three were moved to the Awaiting Trial Block on the 1st of July 2005.

The Human Rights Commission Report states that although the conditions of the Applicant’s custody partially comply with the U.N. Minimum Standard Rules, in relation to lighting and clothing, they do not comply in relation to sleeping accommodation, the requirement for separate accommodation, washing and personal hygiene and bedding. Other observations are that there is falling debris of cement from roof, ceilings and walls of the prison, the remand prisoners are given no exercise and there was no regular access to clean water for showers and washing.

Annexed to the Report, is a previous report, obtained on the orders of Mr. Justice Winter in the case of Tawake Cakacaka which deals with similar conditions for another remand prisoner. In particular, the report highlighted the cold in the cells, the lack of ventilation with “only a high window barred with iron rods, through which rain would power through and wet the cell beddings or cell floor, accounting for the foul stench and dampness.” In that case, Winter J found Cakacaka’s conditions of custody to be in breach of section 25 of the Constitution, and released him on bail.

Counsel for the Attorney-General disputes any breach of the U.N. Standard Minimum Rules, or any breach of section 25 of the Constitution. She also states in her written submissions that the overcrowding is due to the fact that there are only 28 cells and therefore prisoners must be kept 3 to a cell. She further says as follows:

“This is a problem of space in the Suva Prison due the number of prisoners coming in. There has been no improvement made in the condition of the Awaiting Trial Block as no budgetary allocations made for the upgrading of cell blocks in Suva Prison this year. There has been budgetary allocations made but this [is] for the upgrading of Labasa, Levuka, Taveuni, Medium (Naboro Prison) and Ba.

To solve the problem of overcrowding in the Suva Prison, efforts have been made to relocate prisoners to other prisons around Suva and Nasinu areas.”

The Attorney’s position appears to be that the conditions of custody are not inhumane and degrading, and, if they are, they are justified by lack of budgetary allocation.

It is quite apparent that since the visit of the High Court judges to Korovou Prison in October of last year, nothing has changed at the Awaiting Trial Block. In Ladpeter, I described the process by which judges should approach the question of conditions of custody in bail applications. At page 14 of the judgement I said:

“What is the relationship between section 25 of the Constitution and section 19(2) of the Bail Act? Under the Bail Act, conditions of custody are relevant, and must be balanced with all other factors listed in section 19 in deciding whether or not to grant bail. However, when the conditions have reached a level of severity and humiliation such as to constitute inhuman or degrading treatment, then the deciding court must grant bail. This is because the right under section 25(1) is an absolute and non-derogable right. If a person is subjected to inhuman or degrading conditions of custody, then no reason is acceptable for further detaining him.”

In Ladpeter the applicant was released on a balancing exercise of all relevant matters under section 19. He was not a bail risk and indeed he did observe his bail conditions and eventually appeared at trial.

In State v. Senijieli Boila and Pita Nainoka HAC 032 of 2004S, I found that although bail should be refused on the balancing exercise under section 19 of the Bail Act, the conditions of the Awaiting Trial Block were such that they dehumanised the inmates held in the Block. However because the applicants had been moved out of the Block and into the Sacau Dormitory (which did comply with the UN Standard Minimum Rules), bail was refused.

Of course a breach, or several breaches of the UN Standard Minimum Rules, do not necessarily lead to a finding that there is a breach of section 25 of the Constitution. However, the Rules “provide a barometer for judges as to the acceptability of prison conditions, and allow for some objectivity, based on international standards, in the assessment of prison conditions. The greater the departure from the Minimum Standards, the greater the likelihood of a finding of a breach of section 25 of the Constitution.” (Boila and Nainoka).

In this case, on a normal balancing exercise of the factors listed in section 19 of the Bail Act, I would refuse bail for the Applicant. Although he has only one previous conviction, it is for the offence of wrongful confinement (to which he pleaded guilty) arising out of the hostage crisis of 2000. It is a previous conviction of a high degree of seriousness. Further, he is currently awaiting trial on even more serious charges of murder and attempted murder. The circumstances of the alleged offending are not trivial and it is in the public interest that he be remanded to ensure his presence at trial. Although he has a stable family background, I have inadequate information before me of any details of the company he says he runs for his family. On a balancing exercise of section 19, I would be inclined to refuse bail, despite the delay in the trial.

However, I consider the conditions of his custody to be in breach of section 25 of the Constitution. No matter how serious the alleged offending, there is no justification for holding a remand prisoner in conditions which degrade him. Even if he is convicted, the State has an obligation to ensure that the term of his prison sentence shall not be served in conditions that are inhumane and degrading. If he had not yet been convicted, the obligation is no less.

It is a sad indictment on the administration of justice in Fiji that in 35 years, nothing has been done to improve the conditions of custody for the remand prisoners. It is an even sadder indictment on the executive that knowing that there is a certainty of the release of remand prisoners who should not be released in the public interest, no steps have been taken to improve the conditions of custody. The passage of 35 years tends to undermine the response that the neglect and inaction is attributable to lack of resources. The inaction of the executive will now lead to the release of prisoners on bail.

I cannot accept the Attorney-General’s position that lack of budgetary allocation justifies keeping prisoners in degrading conditions. Indeed the failure to provide proper remand facilities for prisoner for 35 years, and, the provision of budgetary allocations to prisons which have not been declared in breach of the Constitution, instead of an allocation to a prison which has been so declared, suggests that the executive is yet to accept responsibility for ensuring compliance with section 25 in relation to the Korovou Prison.

In the result, the Applicant must be released on bail, but on strict conditions which I shall now fix after consultation with counsel.

I am most grateful to counsel for the Human Rights Commission, the DPP’s Office, the Attorney-General’s Chambers and for the Applicant for their helpful and thoughtful submissions in the course of this application.

Nazhat Shameem
JUDGE

At Suva
17th August 2005