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State v Vusonitokalau [2008] FJHC 37; HAC029D.2008 (12 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 029 of 2008

STATE

v.

FELIX VUSONITOKALAU

Hearing: 11th March 2008
Ruling: 12th March 2008

Counsel: Mr. P. Bulamainaivalu for State
Accused in person

RULING

The Applicant applies for bail pending trial. He is charged on four counts of robbery with violence and one count of unlawful use of motor vehicle. On each count of robbery with violence he is alleged to have robbed people on the 6th of December 2007 while being armed with an offensive weapon. The value of the items alleged to have been robbed is just under $18,000. His case was transferred to the High Court and called on the 7th of March 2008. The Information and disclosure have yet to be filed. There is likely to be an application for consolidation with another case to be called in the High Court on the 20th of March 2008.

The grounds on which this application is made are that the prosecution case is not strong, that he has an alibi, that the Applicant has been in custody since December 2007, and that the Applicant would like to make arrangements to instruct counsel of his own choice. At the hearing of this application he also raised the issue of overcrowding of the remand centre at Korovou Prison.

The State objects to bail being granted, pointing to the seriousness of the charges, the Applicant’s previous convictions, and the lack of evidence that the remand facilities are unsatisfactory.

Disclosure has yet to be filed in court, but it was conceded by State counsel that there was no police confession and that the case rested on the identification of the Applicant by a civilian witness. He said that the Applicant’s identification had been confirmed in an identification parade and that he had given no alibi notice to the prosecution.

The Applicant is facing not only these charges, but also similar charges of robbery with violence in the Magistrates Court. He has a number of previous convictions, from 1992 to 2005. A number of these are for robbery with violence. For his last conviction on 12/4/2005, he was sentenced to 12 months imprisonment. With the current disposal rate of the Suva High Court, he is unlikely to stand trial for 6 months.

The Applicant is entitled to bail unless the interests of justice militate against the grant of bail. In this case I consider that the State has successfully rebutted the presumption in favour of bail. Firstly the offences are serious and there are multiple counts. Secondly the Applicant is facing prosecution in another court in addition to this one. Thirdly, State counsel will be making an application for consolidation in this case, with other accused persons on the 20th of March. If the application is allowed, more than 5 persons will have been alleged to have taken part in the robberies. That in itself suggests that the alleged offending falls into a category of serious offending.

The Applicant raises prison conditions. Conditions of custody are relevant to a bail application and should be considered by the court after hearing from the State and the prisoner. In this case the Applicant has raised the issue at the hearing of his bail application and the State has had no opportunity to rebut it. I will call this matter again for review on the 20th of March 2008 and ask the State to lead evidence of remand facilities.

For the present, bail is refused for the reasons I have given.

Nazhat Shameem
JUDGE

At Suva
12th March 2008