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Codrokadroka v State [2006] FJHC 99; HAM 008.2006 (17 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 008 OF 2006

BETWEEN

ISOA CODROKADROKA
Applicant

AND

STATE
Respondent

Counsel: Ms Senikuraciri - For Applicant
Mr. R. Gibson - for State

Date of Hearing/Decision: 17^th February, 2006

DECISION

Background

The applicant accused is charged with murder.

The State say that he killed an Australian tourist while the two of them were sharing a hotel room at the Peninsular Hotel on the early hours of the morning of the 7^th of May last year.

The applicant has remained in custody for the last 9 months. This is his first bail application. During that time he has been held in the notorious remand facility at Korovou.

I remind myself of the constitutional guarantee of an individual’s presumed innocence and rights to bail enshrined not only in that founding document but also set out in the Bail Act of 2002.

The presumption in favour of bail can be rebutted by the State.

In this application the applicant says that although the charge against him is serious he is a first offender. He has no history of breach of court orders. He has strong ties to the community. It is proposed that if he is granted bail he moves to live with his family at their village in Tailevu and that his family and in particular his mother who has sworn a surety affidavit in support of this application will see to it that he honours the terms and conditions of bail and in particular that he turns up to court when required.

In opposing the bail application counsel says that his community ties are not strong because he is single, had until this event been living in the west with his aunty, was unemployed and was not contributing to his village life. He was described by counsel as free spirit.

Counsel also submits in effect that an indicator of his ability to breach bail is found in the fact that shortly after this offence be avoided the police by heading back to the west.

Counsel is concerned not only at the seriousness of the charge but the fact that the more serious the charge the more tempting it is to breach hail and fail to attend court.

That Counsel says when coupled with the strength of the prosecution case must mean that the State are in a position on this application to rebut both the constitutional rights and statutory presumption this applicant may have to bail.

I disagree.

This is a first offender. He has remained in custody for the last 9 months. There is little prospect of him being able to now interfere with any evidence or witnesses in respect of the case.

I find that he is tied into his community. At least that is the proposal once he is granted bail. The proposal is that he will return to his village in Tailevu and be under the direct supervision of his parents and help them on their farm whilst awaiting the conclusion of his trial. In so far as his attempted evasion of the police shortly after this incident I don't accept that's a fair conclusion to draw. That fact to the matter is that he had failed his sixth form examinations and the family in an attempt to get him a better life had sent him to live with his aunty in Lautoka. That's where he was living at the time this offence was said to have occurred. He was only coming to Suva by way of passing through it on his return home for a village visit when he met up with this Australian tourist they formed a friendship and ended sharing a room in the Peninsular and a night on the town Suva.

Learned counsel for the prosecution submits that the case against the applicant is strong. At first reading that appears to be so, however, that must be tempered with a number of significant features that may tell in favour of someone charged with murder. The first of those is that it looks clear from the nature of the injuries sustained both by the deceased and this applicant that a defence of self defence may at least be available to this accused at his trial. Secondly, if he maintains the position described in his affidavit there may in addition to that defence be a further positive defence of provocation which may reduce the offence of murder to one of manslaughter.

However, beyond that having briefly read the file I see that there is an unexplained time period of between 2 and 3 hours during which the deceased was unattended.

It appears that the two of them returned to the Peninsular Hotel about 1.00-2.00am in the morning. The deceased was not found until after 5.00am by the security guard. The accused was seen to leave the hotel about 3.30am. So what may have happened to the deceased between the admitted fight between him and the accused and 5.15am is a considerable gap in time that requires some explanation. That may require further attention by the authorities because one of the witnesses, Mr. Jai Bhai a business man, present at one of the nightclubs the two visited on the night in question said to the police that as the two gentlemen left that club the deceased asked two girls to follow them to the Peninsular Hotel.

This is not to say that the charge of murder is not properly bought. It is not to say that there is in these factual circumstances a complete defence. It is, however, to say that the general proposition that the prosecution case against this accused is strong, has to be tempered with the reality of available classic defences to murder, self defence and provocation and an apparent period of time when the deceased was alone in the hotel room and not seen by anyone.

Accordingly, for these reasons as the State can’t, in my view, rebut the presumption and the applicant is entitled to bail.

Beyond that, however, i also consider that his bail application is supported by the correspondence passing between his counsel and the Fiji Prison Service.

The Officer Incharge of the Prison wrote to counsel on the 13^th of February, 2006 confirming that the holding capacity of prisoners at the remand centre is 28, that the current muster is 45, that the applicant is sharing a cell meant for one prisoner with two other prisoners and that the overcrowding situation at the remand centre has been an ongoing concern since the beginning of the year.

Accordingly, even if I were not convinced on the other matters to which I have referred that bail was appropriate the inhumane and degrading conditions currently facing remand prisoners at Korovou do add extra strength and weight to this applications for bail.

Accordingly, I propose granting bail and I now pause to discuss appropriate conditions with counsel.

As for conditions the standard conditions will apply. There is to be a non-cash surety of $1500.00 and in addition to the standard conditions the applicant Isoa is to be under curfew between 7.00pm and 6.00am within the confides and known boundaries of his village. He is not to change his address at all unless there is a further order of the court. He may leave the confines and known boundaries of the village between 7.00pm and 6.00am if and only if lie is accompanied by his mother or father. He is to report to the Korovou Police Station three times a week between 7.00am and 6.00pm that is Mondays, Wednesdays and Fridays.

The next call for this matter is the 11^th of April, 2006 and he is bailed to that date to appear before me.

Hon. Justice G. Winter
High Court of Fiji
At Suva

Gerard Winter
JUDGE

At Suva
17 t" February, 2006