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Nakau v Republic of Fiji Military Forces [2005] FJHC 375; HAM0085.2005 (1 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0085 OF 2005

BETWEEN:

ROPATE NAKAU
Applicant

AND:

THE REPUBLIC OF THE FIJI MILITARY FORCES
Respondent

Counsel: Ms B. Malimali – for Applicant
Capt. P. Luveni & Major Tuinaosara – for Respondent

Date of Hearing & Decision: 1st December, 2005

EXTEMPORÉ DECISION

This is an Extemporé Decision given after a brief but informed and open discussion concerning the applicant’s bail status and an application made by his counsel to commit the Commander of the Republic of Fiji Military Forces for contempt. I start with that issue. I do not intend making an order committing the Commander of the Republic of Fiji Military Forces for contempt. I am satisfied that the circumstances of the Courts Martial were sufficiently indistinct that there arose a genuine difference of opinion concerning my decision on bail. I trust that by this decision which is to follow that any misunderstanding concerning the final paragraph of my original bail ruling of the 11^th of November, 2005 will be resolved.

Bail

Ms Malimali made an oral application for the applicant to be re-admitted to bail. I grant that application and in doing so I rely on the earlier reasoning referred to in my judgment of the 11^th of November, 2005 but would add to it.

During the course of that earlier hearing it was submitted perhaps a little over zealously that the Judge Advocate would have the ability to determine bail at the commencement of this applicant’s trial. On a closer reading of the Queens Regulations and the Rules of Procedure that govern Courts Martial it is clear that while the Judge Advocate has the power to advise on matters of law (including matters concerning the remand of military personnel in courts martial) he nonetheless does not actually have any powers to bail. He can advise but he cannot grant; bail.

That power under Queen’s Regulation 6.3.5 lies with the convening officer. That provision reads in part during his trial by courts martial the accused is to be held under close arrest except where the convening officer directs for that period he is to be held under open arrest. There is a distinction to be drawn between the various phrases used to describe the start of a courts martial. Those phrases being a convening which refers to the order that is issued by the Supreme Commander concerning charges. The assembly which refers to the gathering together of all the necessary elements and personnel to conduct a trial and the trial itself. Queen’s Regulation 6.3.5 makes it clear that there is, as I said in my decision of the 11^th of November 2005, a point in time that might be called the start of the trial. That is a point in time where the trial has been convened and the various parties have assembled and the Judge Advocate has been sworn in and has himself administered the various oaths to the President and members of the court. It is my view that this is the point in time when the trial starts.

So accordingly until this applicant’s trial starts in that fashion I grant the application for bail and do so in exactly the same way I did on the 11^th of November, 2005.

1. I order that the applicant be kept under open arrest.
   
2. I order that he is to be under open arrest at the Togalevu Naval Base in Suva and subject to military law he is to be at liberty within the confines of that military establishment and again subject to military law he is to be given every personal freedom.
   
3. I direct as a condition of his open arrest that he be granted leave every weekend from 1600 hours on Friday to 1600 hours on Sunday to stay with his father in his home located at the Tacirua Village on the outskirts of Suva.
   
4. He is to travel to the village by the most direct route.
   
5. He is to return from the village to the Togalevu Detention Centre at Suva by the most direct route between 1600 hours Friday to 1600 hours Sunday on every weekend until his courts martial starts.
   
6. As described in this decision he is to be at liberty to freely move around within the known confines and boundaries of Tacirua Village. He is restricted to the known confines and boundaries of that village and he is not to move outside of them. He is effectively placed under a boundary curfew then from 1600 hours Friday to 1600 Sunday on each and every weekend.
   
7. He is not to approach, discuss or contact directly or indirectly any known witness for his courts martial.
   
8. If he has any travel documents such as a Passport this is to be surrendered. He is not to obtain any overseas currency or any travel documents and he is not to leave Fiji.
   

Gerard Winter
JUDGE

At Suva
1st December, 2005