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State v Naisua [2010] FJHC 244; HAC083.2010 (30 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Misc. Case No: 90 of 2010
Criminal Case No.: HAC 083 of 2010

BETWEEN:

THE STATE
Prosecution

AND:

SIMELI BILI NAISUA
Accused

Date of Hearing: 29th June, 2010
Date of Ruling: 30th June, 2010

Counsel: Mr Waqavonovono. K. – for State
Ms. Vaniqi. S. – for Accused

BAIL RULING

[1] This is an application seeking bail for the accused, Simeli Bili Naisua, pending trial.

[2] The accused was produced before the Magistrate upon a charge of rape punishable under Section 207 (2) (c) of the Crimes Decree No 44 of 2009. The charge was founded upon an alleged act of sexual invasion by the accused on a three (3) year old girl, Sereima Marama (the victim), on 5th April, 2010. Material reveal that the accused, who is the paternal uncle by virtue of him being the elder brother of the victim’s father, had got the victim to suck his penis in his home in an desolated environment. The accused was 47 years old at the time of the alleged offence. The learned Magistrate sitting in Suva transferred the case to the High Court for trial on 09.04.2010 in pursuance of an application by the State as the alleged offence was indictable.

[3] The information, as filed by the Director of Public Prosecution, on 23.04.2010 before this court reveals the offence of rape in terms of Section 207 (2) (c) of the Crimes Decree. The disclosures too have been filed in Court and served on the accused. The case remained ready to proceed with the trial. However, the learned Counsel for the State moved to file amended information within a week from 29.06.2010, to which there was no objection from the accused. It is in this background that the accused is now seeking bail pending trial.

[4] The accused, in support of his plea for bail, has filed an undated affidavit wherein several grounds have been urged. Learned counsel, appearing for the accused, also has filed comprehensive written submissions inviting the attention of court both to facts and to law including the Bail Act of 2002 and the international instruments such as International Covenant on Civil and Political Rights (ICCPR) in order to highlight the necessity of preserving personal freedoms even though the accused is charged with a serious criminal offence.

[5] The State too has been equally responsive with its elaborate written-submissions opposing the application for bail by the accused and has underlined the undesirability of releasing the accused on bail at this stage before trial. The State relies on the provisions of the Bail Act in terms of its Sections 17(2) and 19 (2) (c), which are made to ensure public interest and justice.

[6] At the hearing before me on 29.06.2010, learned counsel appearing in support of the application for bail, confined herself to paragraphs 16 and 17 of the written-submissions. It was submitted that conditions of the remand-custody were degrading and unfit for human inhabitation. Learned counsel contended that such appalling conditions necessitate the release of the accused on bail, having relied on Naba vs State and State vs Mohamed Sahid and six others. Learned counsel led the evidence of the accused in order to satisfy this court as to the existence of alleged conditions in the prison where the accused has been in detention since April, 2010.

[7] The accused in his evidence stated that:

(i) He has been in remand custody for last three months and has been sleeping on the floor since;

(ii) The mattresses are infected with bugs and the beddings and towels are very unclean;

(iii) He has got skin diseases on hands and private parts of the body due to the very unhygienic conditions of the prison; and,

(iv) Limited time is given for meals and exercises.

Answering court, the accused, however, admitted that he had no certificates to support his claim that he had caught skin diseases whilst in custody.

[8] Learned State Counsel, in a timely move to meet the complaints of the accused, placed the evidence of Mr Apimeleki Navuni, Assistant Superintendent of Prisons, the officer-in Charge of Suva Prison. The witness accepted the fact that the prison is over-crowded; but, it was his position that it is within their manageable capabilities to accommodate the prisoners at Suva Prison. He stated that the prisoners are given beds generally; but, there could be situations where some of the prisoners have to sleep on the floor resulting from an influx of prisoners, which is normally not the case. He said that the beds and beddings are washed almost on daily basis and denied that his prison was not suitable for human inhabitation. It is his uncontradicted testimony that there were no complaints of infectious diseases received by him or his medical team, which undertakes inspection on healthcare facilities. He stated that medical certificate is usually issued when sickness is reported.

[9] I have carefully considered the evidence of the accused and the prison-officer bearing in mind that the conditions in the prisons were the only ground that was being relied upon by the accused to support his application for bail.

[10] I find that there is no proof before court that the accused has, in fact, been subject to any skin diseases and/or communicable diseases whilst in remand custody. I also do not find any material in order to satisfy myself as to the prevalence of such conditions for an imminent threat to endanger the accused in particular and the prisoners in general at the prisons where the accused has been on remand. The prison-officer, on the other hand, whilst admitting the problems in accommodating a large number of persons-both accused and convicted-stated that the authorities were doing their best to manage the problems. It is his uncontradicted evidence that he had not received any complaints of any disease from the accused. I am inclined to accept this explanation by the prison-officer. I conclude, in the circumstances, that the evidence of the accused has the effect of overstating and exaggerating the alleged conditions of the prison on the basis of vulnerability to diseases merely to advance his application for bail. For these reasons, I have no difficulty in arriving at the conclusion that the accused has been untruthful.

[11] I now propose to consider the application for bail in light of the above conclusion and the applicable legal principles especially those under the Bail Act.

[12] Section 3 of the bail Act provides:

‘ (1)Every accused person has a right to be released on bail unless it is not in the interests of justice that bail should be granted’.

The right of an accused person to be released on bail, therefore, is not an absolute right. Instead, the Law requires the consideration of interests of justice for an accused person to qualify for bail and enjoy his ‘right to be released on bail.’ In terms of sub-section (2), the court has been vested with unrestricted power, as opposed to a police officer, to grant bail. The sub-section reads:

‘(2) Bail may be granted by a court or, subject to section 8(2), by a police officer.’

However, this power of court seems to me to be entailed with a discretion, which needs be exercised having regard to the provisions especially in Sections 3 (4), 13, 17, 18 and 19.

[13] In dealing with the above provisions, I am also mindful of the salient feature in the Bail Act that there is a presumption in favour of the granting of bail to an accused. However, a person, who opposes the granting of bail, may seek to rebut the presumption in terms of its sub-section 3. Grounds upon which the presumption could be rebutted are contained in the Section itself under sub-section (4); but, not limited to it under the scheme of the Act. Sub-section (4) provides:

(4) The presumption in favour of the granting of bail is displaced where-

(a) the person seeking bail has previously breached a bail undertaking or bail condition; or

(b) the person has been convicted and has appealed against the conviction.

[14] Rebuttal of the presumption, which is in favour of the accused for bail, has been made possible even by the provisions of Section 18 of the Bail Act insofar as refusal of bail is concerned. Section 18 significantly contains well-defined bases, which include:

(a) The likelihood of the accused person surrendering to custody and appearing in court;

(b) the interests of the accused person;

(c) The public interest and protection of the community to limit encroaching upon the presumption of bail in favour of the accused.

[15] Section 19 of the Act further supplements the above Section with easily identifiable criteria if court or a police officer were to refuse bail. Section 19 provides:

Reasons for refusing bail

19(1) An accused person must be granted bail unless in the opinion of the police officer or the court, as the case may be:-

(a) the accused person in unlikely to surrender to custody and appear in court to answer the charges laid;

(b) the interest of the accused person will not be served through the granting of bail; or

(c) granting bail to the accused person would endanger the public interest or make the protection of the community more difficult.

(2) In forming the opinion required by subsection (1) a police officer or court must have regard to all the relevant circumstances and in particular:

(a) as regards the likelihood of surrender to custody-

(i) the accused persons background and community ties (including residence, employment, family situation, previous criminal history,

(ii) any previous failure by the person to surrender to custody or to observe bail conditions;

(iii) the circumstances, nature and seriousness of the offence;

(iv) the strength of the prosecution case;

(v) the severity of the likely penalty if the person is found guilty;

(vi) any specific indications (such as that the person voluntarily surrendered to the police at the time of arrest, or, as a contrary indication, was arrested trying to flee the country;

(b) as regards the interests of the accused person-

(i) the length of time the person is likely to have to remain in custody before the case is heard;

(ii) the conditions of that custody;

(iii) the need for the person to obtain legal advice and to prepare a defence;

(iv) the need for the person to beat liberty for other lawful purposes such as employment, education, care of dependants);

(v) whether the person is under the age of 18years (in which case section 3(5) applies);

(vi) whether the person is incapacitated by injury or intoxication or otherwise in danger or in need of physical protection;

(c ) as regards the public interest and the protection of the community-

(i) any previous failure by the accused person to surrender to custody or to observe bail conditions;

(ii) the likelihood of the person interfering with evidence, witnesses or assessors or any specially affected person;

(iii) the likely hood of the accused person committing an arrestable offence while on bail.

It is on the strength of these provisions that both counsel addressed court in advancing their respective cases.

[16] Learned Counsel for the accused, with a view to enable court to form its opinion as set-out in Section 19(1) of the Act, stressed on the interests of the accused as laid down in Section 19(2) (b) and sought to challenge the conditions of custody, as referred to above, to seek bail for the accused on the basis of his testimony. I have already concluded that, the conditions that the accused sought to rely on, were an exaggeration and the accused had been untruthful in that regard. Hence; the reliance on conditions of custody, as spelt-out in Section 19 (2) (b) (ii) of the Act, is no longer available for the accused to make him entitled to the ‘right to be released on bail’ under Section 3 (1) of the Act.

[16] Nevertheless, the presumption in favour of the accused for the granting of bail, is still in force. It is now the task of court to consider whether the presumption is affected so as to result in its rebuttal in view of the opposition to bail as sanctioned by various sections such as 3(4), 18 and 19 of the Act. Section 3(4), however, does not have an application here and the State’s opposition to bail does not rest on that section. Instead, the opposition to bail was focussed on the basis of criteria enumerated in Sections 18 and 19 of the Act by the State.

[17] Learned counsel for the State submitted that:

‘The accused is 47 years old......The victim is only [a] three year old girl, who is related to the accused in that the accused is the victim’s father’s brother and they were neighbours at Kalekana in Lami. That the application was in a position of trust and then committed the offence by asking the victim to suck his penis’.

[18] It was further submitted on behalf of the State that the offence with which the accused stands charged is very serious and involves a high degree of immorality and a breach of social and moral trust given the paternal relationship to the victim.

[18] It is appropriate in this context to refer to the observations made by Justice Goundar in the case of ‘The State vs A.V. (Criminal Case No 192/2008). Justice Goundar held:

"Children below the age of 14 years are the most vulnerable victims, and therefore, the need for protection of law is greater.......By ratifying the convention, the State is obliged to take all appropriate legislative measures to protect children of this country from all forms of physical or mental violence, injury or abuse or exploitation or sexual abuse. The Convention also allows for judicial involvement to carry out the protective measures for children".

[19] I am of the view that this observation of Justice Goundar in conjunction with other factors in the above paragraph constitute elements of ‘public interest’ and the necessity ‘for protection of the community’ as stated in Section 19 (2) (c) of the Act. In the result, I hold that the State has succeeded in satisfying court to form its opinion as to the likelihood of the accused interfering with the evidence and witnesses under the section 19 (2) (c) (ii) read with Section 18 (1). The presence of such likelihood would have the inefficacy of affecting the administration of justice, which in my opinion, is capable of rebutting the presumption in Section 3(3) in favour of the granting of bail to the accused. I regret my inability to agree with the learned counsel for the accused that such likelihood referred to in the statute could be remedied procedurally by imposing appropriate bail conditions.

[20] I disallow the application for bail and bail is accordingly refused. I order the State to take early steps to expedite the trial, which I think would enable both parties to meet ends of justice.

Priyantha Nawana
JUDGE
30/06/2010