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Macartney v State [2008] FJHC 4; HAM 004.2008 (21 January 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Misc. Case No: HAM 004 of 2008

Between:

SIMON JOHN MACARTNEY
Applicant

And:

THE STATE
Respondent

Hearing: 18th January 2008
Ruling: 21st January 2008

Counsel: Mr. S. Valenitabua for Applicant
Mr. W. Kuruisaqila for State

RULING

The Applicant makes several applications by notice of motion and supporting affidavit. They purport to be moving inter alia the inherent jurisdiction of the court since the case has not been transferred to the High Court. The orders sought are:

1. Variation of bail conditions to lift the Accused’s curfew hours to allow him to work.
   
2. Variation of bail conditions to allow the Accused to live with his girlfriend who is a State witness.
   
3. An order to the prosecution and police to uplift vodafone records for the mobile phone of a State witness.
   
4. An order to the prosecution and police to produce telephone records of the Perkins Pizza Restaurant.
   
5. An order that the prosecution produce unedited security video tapes of the restaurant called "Chicken Express" from 6am on the 22nd of October 2007.
   
6. An order that the prosecution obtain security video recordings of the Nadi Airport arrival lounge from 6am to 6pm on the 22nd of October 2007.
   

The application relied on the affidavit of Simon John Macartney. It sets out his bail conditions, including an order for the surrender of travel documents, and a curfew from 6pm to 6am daily. His girlfriend is one Iowana Mistry who is a State witness. Also set out in the affidavit is that the telephone and vodafone records sought will contradict the disclosed evidence of Seema Singh (another prosecution witness). Further he states that the video recordings sought will be necessary for his defence and he seeks them in accordance with section 28 of the Constitution, which guarantees his right to adequate facilities in the preparation of his defence.

In response the State filed the affidavit of Inspector Balwant Singh, the investigating officer. He states that the Accused is charged with murder. He states that the curfew hours will allow the Accused to seek employment and that in any event he will need approval from the Immigration Department to work. He further states that allowing the accused to see a State witness could influence her testimony.

The Accused also gave sworn evidence saying that he had been offered employment by a nightclub but that the curfew hours did not allow him to take it up. Finally he said that the Immigration officials had assured him of a work permit if employment was offered.

The imposition of a curfew is not unusual in cases of alleged murder. Often they provide an alternative to remand in serious cases. They also protect the right of the accused to work if he wishes, and to instruct counsel during particular hours.

The application to lift the curfew hours is based on the Accused’s need to work in nightclubs between 6pm to 6am. In the circumstances of the case, this is not wise. Regrettably, nightclubs are often places where alcohol is consumed, sometimes to excess, and where fights and disagreements are not unusual. The Accused is alleged to have killed his wife, and to allow him to move amongst members of the community possibly including members of his wife’s family would be prejudicial to the interests of justice. I cannot agree to lifting the curfew order.

Similarly the application to meet and speak to a State witness is refused. All State witnesses should be protected prior to trial, even from themselves. This is particularly so in a case where many State witnesses are related to each other. It would be most unusual to allow accused persons and State witnesses to co-habit, or to communicate prior to trial. I am not persuaded that the Accused should be allowed to break this rule in this case. The application is refused. The Accused is free to seek employment (subject to the obtaining of appropriate work permits) during daylight hours.

The other orders relate to disclosure. Counsel told me that disclosure in the Magistrates’ Court is still incomplete and that, the State may disclose the requested telephone and camera records. This application may therefore be premature. If such disclosure is not effected, the proper time and place for it, will be the trial court. That court will be in a position to read all the disclosed statements, and to assess whether section 28 of the Constitution is complied with. I cannot make such orders on the limited information before me. These applications should be made to the trial judge.

For these reasons, the applications are refused.

Nazhat Shameem
JUDGE

At Suva
21st January 2008