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State v Boila [2005] FJHC 4; HAC0032D.2004S (10 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 032 OF 2004S

STATE

v.

SENIJIELI BOILA; and
PITA NAINOKA

Hearing: 7th January 2005
Ruling: 10th January 2005

Counsel: Ms P. Madanavosa for State
No appearance for 1st Accused
2nd Accused in Person

RULING

The Applicant, Pita Nainoka makes a further application for bail pending trial. His previous applications have been refused (the last on the 25th of October 2004) on the grounds that he is unlikely to appear in court for trial, and that he is remanded in conditions which are not inhumane or degrading. This last finding was based on the removal of the Applicant from the Main Cell Block (which has been declared by three High Court judges to be inhumane and degrading) to the Sacau Dormitory which generally satisfies the United Nations Minimum Standard Rules.

In my Ruling of the 25th of October, I said:

“As a result of the evidence of the Assistant Superintendent [of Prisons], there is now better evidence before me of the conditions in which the Applicants are kept. If they had remained in the Awaiting Trial Block, I would not have hesitated to grant bail to both today. However, although I continue to harbour doubts about their exact location from the 8th of October to the 20th of October 2004, I am satisfied that they are now in conditions which satisfy the Standard Minimum Rules, and section 25 of the Constitution. Although the OHS Report is damning in relation to the structural condition of the Prison, I am satisfied that as long as the Applicants remain in the dormitory, they are not in inhumane and degrading conditions. Further, although the OHS Report is certainly relevant in the granting or refusal of bail under section 19 of the Bail Act, it is not sufficient to displace my real apprehension that the Applicants are unlikely to surrender to custody if granted bail.

Bail is therefore refused. However, if the Applicants in the future complain about being shifted again to the Main Cell Block or the Awaiting Trial Block, and I am satisfied of this on any evidence put before me, I will not hesitate to grant bail.”

The Applicant now complains that he has been shifted to a cell in the Main Cell Block. The prosecution called two witnesses, both prison officers, who explained the circumstances of the shift. The evidence is that the Applicant was involved in an argument or fight with other remandees in the Sacau Dormitory. As a result, he sustained an injury to his hand which required surgery. He was ordered by the doctor at the CWM Hospital not to eat anything on the day his surgery was due. On two days scheduled for his surgery, the Applicant consumed food causing the doctor (in understandable frustration) to discharge him and order his return to Korovou. On the second occasion between the 22nd and 24th of December the Applicant objected to his discharge and became involved in a fist-fight with his escorting prison officer. He then made a complaint of assault. As a result, the Applicant was moved out of the dormitory and into the cell in the Main Cell Block for the duration of the investigations. State counsel said that investigations were likely to continue for some weeks.

These facts are not in dispute. The only dispute appears to be as to who started the fight with the prison officer. For the purposes of this application, who started the fight is irrelevant. What is relevant is that the Applicant’s own conduct clearly contributed to his removal from the dormitory. I understand entirely the security and safety considerations leading to his removal from the dormitory. I cannot however accept his removal to a cell which has already been declared by this Court and by three High Court judges, to be inhumane and degrading.

The judges visited the Korovou Prison on the 5th of October 2004. On the 15th of October 2004, my brother Winter J declared the cells in the Main Cell Block and Awaiting Trial Block to be in breach of international standards and of section 25 of the Constitution. In his Ruling in Leone Vakarusaqoli and Others v. State HAC 023 of 2004, he found that although he had no confidence that the Applicants would answer bail when called upon, there was a duty on the Court to release them on bail because the conditions in which they were remanded were entirely unacceptable. He said, at page 10:

“I find that these breaches have existed for over 5 months. I find there is a risk that the breaches will continue. Successive administrations have failed since 1971 to address even the most basic building and structural requirements and defects of this jail. I have absolutely no confidence that in the time before trial these remand issues will be addressed to enable the correctional facilities to operate within acceptable guidelines.

Yes, there is a risk of re-offending. Yes, there is a risk that these applicants might not answer their bail conditions. Yes, the trial may never proceed, but I must balance those risks against the shocking attack upon the applicants’ non-derogable rights and the deprivations they have already suffered. These applicants may well have allegations of serious criminal activity against them but a responsible community acting with maturity and humanity can never insist that remand prisoners be subject to such a severe denuding of their basic rights and expectations of fair humane treatment. Society has created this problem so society will have to live with the outcome.”

I respectfully endorse his remarks. I comment further, that his lack of confidence that remand prisoners would be kept out of the condemned cells, appears to be well-founded. Certainly the Applicant has been moved back into the cell despite the rulings of Winter J and Gates J (in Tawake Cakacaka v. The State HAM 045.04S), and of my own rulings in Senijieli Boila and Pita Nainoka v. The State HAC 032 of 2004S and State v. Eugene Tuni Michael Ladpeter HAC 019 of 2004S.

Three months have now passed since the first of those rulings was delivered. The rulings were referred to and published extensively in the media. The remand prisoners were moved to a dormitory, and the Prison Authorities assured the Courts that they would not be moved back into the cells. Those assurances are now clearly shown to be hollow. Further the move of some remand prisoners to the dormitory was clearly a temporary “band-aid” solution.

I am not unsympathetic to the plight of the Prison Authorities. After all, with limited resources and a condemned and over-crowded prison, there are limited options available to them to house prisoners who might present a security risk. However, I am not told of any plan, long term or short term, to deal with this problem. Where are remand prisoners to be housed, safely and securely and in conditions which are humane?

The problem is now urgent. If the executive does not move quickly to solve it (and in particular the Ministry of Justice) then prisoners who should not be released, will be released by the Courts. From the point of view of the public interest, this will create a serious problem, especially with rising public concern about recent incidents of serious violent crime.

In this case, the Applicant should not be released. He is a bail risk who should be remanded until trial. However, the inability of the Prisons Authorities to detain him in humane conditions, leaves me with no choice but to release him on bail. The fact that he has made a complaint against a prison officer is no reason to lock him in a cell which is degrading. Indeed, such conduct smacks of punishment. The incident described to me in this case is unsurprising. The Sacau Dormitory, although an improvement on the cells, appears to be inadequate for the housing of all the remand prisoners. In over-crowded conditions (in one room) tempers are bound to become short, and fights between inmates are inevitable.

It is in the public interest that the Ministry of Justice, and all criminal justice agencies move quickly to provide an adequate solution to this problem. The public is entitled to the safe and secure remand of prisoners. The public and the prisoners are entitled to expect such remand to be humane as well as secure. In failing to provide such facilities, the criminal justice system is failing the public. I can express myself in no stronger terms than these.

Bail must be granted in this case on strict conditions which I will now proceed to lay.

Nazhat Shameem
JUDGE

At Suva
10th January 2005