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Yasa v The State [2005] FJHC 424; HAM0063AD.2005S (18 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Miscell. Action HAM0063A.2005S

NOA YASA & ANO.

V

THE STATE

Fiji High Court, Suva

28th, 29th September, 3rd, 7th, 11th October 2005
18th November 2005

Gates J

RULING

Bail pending trial; remand facility at Suva Prison said to be unsuitable and to result in the holding of remand prisoners in breach of freedom from torture, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment section 25 Constitution; place of incarceration condemned by Human Rights Commission, OHS, and PWD Reports; Awaiting Trial Block possessed serious structural defects endangering inmates; many breaches of Standard Minimum Rules UN 1955; non-derogable rights; failure by State to make appropriate and acceptable provision for remand prisoners; failure to provide temporary, yet safe and suitable, remand facility meanwhile; duty of court to grant bail in such circumstances.

Mr A. Naco for Applicants
Mr S. Bulamainaivalu for the State

[1] Both applicants Noa Yasa and Waisea Vakarauvanua, face an information in which they are jointly charged along with 2 others with murder. They applied for bail pending trial.

[2] They had been remanded and physically housed in the awaiting trial block (ATB) at Suva Prison. In their affidavits they point to the degrading and unsafe conditions existing in that block.

[3] The State through its representative, counsel for the Director of Public Prosecutions, concedes that it cannot in law oppose this application. Counsel accepts bail must be granted in this case. Accordingly, on 11^th October 2005 I granted bail to both applicants on strict terms and with approved sureties. This ruling sets out the reasons for that grant and for the consequential release of the Accused from custody.

[4] Under Fiji’s Constitution every person is accorded a freedom from torture of any kind [section 25(1)]. That freedom is also a right for a person to be free from cruel, inhumane, degrading or disproportionately severe treatment or punishment.

[5] In their affidavits both applicants set out the circumstances of their incarceration which they say amounts to a breach of section 25 of the Constitution. The judges of the Criminal Division of the High Court are now familiar with the existing conditions at the Suva Remand Prison from the frequency with which complaints are raised, and from the detailed nature of the complaints: State v Ladpeter (unreported) HAC0019.04S, 15^th October 2004; State v Leone Vakarusaqoli & Others (unreported) HAC0023.04S, 15^th October 2004; State v Senijieli Boila & Anr. (unreported) HAC0032.04S, 25^th October 2004. . The Human Rights Commission has produced more than one report on this prison making relevant comparisons with international indicators and minimum standards of imprisonment. In addition the judges themselves have been on a joint view of the Suva prison with counsel and solicitors, from the offices of the Director of Public Prosecutions, the Attorney-General, the Legal Aid Commission, and Human Rights Commission, together with the Proceedings Commissioner. It was manifest from this visit that there was indeed substance in these complaints. All who accompanied the judges were visibly alarmed and shocked at the condition of the remand block and by the way the remand prisoners were being administered and held in custody.

[6] The applicants stated they had been moved around from block to block after the prison authorities had closed off certain blocks which had been found to be non-compliant with occupational health and safety (OHS) standards. Later the applicants were returned to the previously condemned cells, the condition of which and the safety of which for both occupants and warders, continued to deteriorate. Another Human Rights Commission Report, prepared in the case of Peceli Vuniwa, a remand prisoner housed in the same block, was also referred to in support of the applications. It was said nothing much had changed since that report, and that conditions at the ATB remained the same.

[7] There were many examples given of the inadequacy of facilities or of the poor use of existing facilities said to amount in toto to a breach of section 25. The cell held 3 prisoners and the toilet consisted of a bucket. There was no hand basin. Hygiene generally was below standard, a fact compounded by the cramped space, and that meals were to be consumed in the cell.

[8] Washing facilities for inmates consisted of a hose held up by a warder. 70 prisoners had to use this hose. There were unsatisfactory restrictions on soap, time allowed for showering, and the laundry of under garments. There were no beds as such, simply mattresses to place on the bare floor. Bedding was poor. Clothes and sleeping items were shared amongst the prisoners leading to the spread of skin diseases. It was said the bedding was never washed or put out in the sun to air. Towels were never dried. Mosquito nets could not be used properly. Rain came in through the cell block windows, and the cells were poorly ventilated and constantly damp.

[9] The perilous state of the fabric of the building is something that has been referred to in several previous judgments which relied on official reports of the Public Works Department. The dangerous state of the building structure arose from what were said to be “grave defects” in the concrete and iron reinforcing.

[10] The OHS report of 31^st August 2004 said of the block:

“exposed badly corroded reinforcement and cracked concrete walls on the ground and first floor, with sign of water flow along some portions of the walls likely from heavy rain. This may create a damp environment for living. In the present state this shall not be a suitable environment for accommodating remand prisoners.”

[11] In Tawake Cakacaka v The State Ruling No. 2 Misc. Action HAM0045.2004S, 2^nd December 2004, I had said:

“Several cells were out of order. This first report added that the structure of the building was such that a prisoner could have been killed in the block.”

[12] The report of the NOHSS of 2004 had included reports from the Structural Section of the PWD dating back to 1971. Photographs illustrated the dangerous extent of the structural defects of the remand block.

[13] The State did not seek to suggest that the state of the building was indeed safe for the housing of prisoners on remand, or for any human habitation. Nor was information placed before me to suggest that the day to day treatment of the remand prisoners was acceptable by Fiji standards, let alone by international standards. All of the defects listed taken from the affidavits of the applicants concerning the manner of their treatment, (hygiene, condition of cells, ventilation, dampness, bedding, water and washing facilities) demonstrate obvious breaches of the Standard Minimum Rules for the Treatment of Prisoners [UN 1955].

[14] Not only were these Minimum Rules agreed a long time ago (50 years back), they had been adopted bearing in mind that many signatory countries were then, as now, subject to financial constraints.

[15] However there is no getting away from the fact that prisoners are held on remand at the Suva institution in conditions that fall unacceptably below the minimum standard. The standard operated is one impermissible for the treatment of our brother and sister human beings, no matter what wrongs are alleged against them or of which they might already have been convicted. The conditions existing in the remand block amount to cruel, inhumane and degrading treatment of the inmates in breach of their rights under section 25 of the Constitution. These rights are non-derogable. They place the judges as guardians of the rights of Fiji’s inhabitants as against any oppressive acts committed against them by the State in a position without alternative remedy. As Shameem J said in State v Savenaca Pe (unreported) Cr. Case No. HAC0024.2004S, 25^th October 2004

“I have no option but to grant bail, because the right under section 25 of the Constitution is an absolute, unqualified and non-derogable right.”

[16] This court accordingly asked to hear from the officer in charge, Suva Prison at Korovou. In response to the subpoena, an officer, not the officer in charge subpoenaed, one Viliame Bulewa attended. He said he was the Chief Officer Administration at Suva Prison. He said he was aware of why he was present and had read the applicants’ affidavits. He had not seen all of the reports but he was aware the ATB had been condemned.

[17] I asked him if there was any other alternative accommodation. At his level he said there had been no discussion of the problem. He said his officer in charge had asked him to attend as his representative. He admitted the prisoners had previously been held in the dormitory but then they had been taken back to the ATB. He said he had not taken part in any discussions as to what was to happen about the Suva Prison.

[18] A second attempt was made to obtain the attendance at court of the officer in charge. The officer in charge was served personally with a further summons to attend court. The OC, Mr Jope Cagidaveta, accordingly gave evidence on 7^th October 2005. He said he had neither received the summons to attend nor been informed by Mr Bulewa to attend, nor had he been told that Mr Bulewa intended to appear himself for the OC.

[19] He said he was aware of the report on the Awaiting Trial Block though not of its detailed findings. He was aware the block had been condemned. A survey had been carried out in 2003 by PWD but the renovations had not yet been started. He thought there was no other alternative but to shift the prison to a new site at Naboro. Somewhat surprisingly he said “nothing has been considered about a temporary arrangement.” There were for instance no considerations for a tented prison until a new safe remand prison could be built.

[20] The State has not litigated this matter on the basis of the suitability or otherwise of the applicants as candidates for bail. The applicants face a very serious charge. It is premature at this stage to consider whether that charge will be the ultimate charge they face at trial. It is likely the applicants would not lightly be granted bail in this case in the normal course of events.

[21] But the State has a burden to provide appropriate facilities for the remand of prisoners who because of their circumstances must await their trials in custody. The obligation is placed upon the State by the Constitution to ensure that such pre-conviction incarceration is carried out in a manner which could not be described as cruel, inhumane or degrading. Unfortunately not only has nothing been done to avoid the dangerous state of the remand building at Suva Prison for the last 33 years, but more culpably now, nothing has been done to make temporary compliant provision whilst a new prison could be built.

[22] The unacceptable immediacy of the problem has been known to the authorities from July 2004, some 16 months ago. Yet nothing has been done to address the problem. There must be a temporary arrangement for housing remand prisoners, in a way compliant with the Constitution. Some persons charged with serious crimes must be held in custody until their trials can be heard. But the courts are not permitted to rule that they continue to be so held, that is, in cruel inhumane and degrading circumstances, which is the case here.

[23] Accordingly, though on strict terms both applicants were granted bail.

A.H.C.T. GATES
JUDGE

Solicitors for the Applicants: A. Naco & Co., Suva
Solicitors for the State : Office of the Director of Public Prosecutions, Suva