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Manufolau v State [2012] FJMC 30; Criminal Case 1688 of 2011 (6 March 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1688/2011

DANIEL URAI MANUFOLAU
(Applicant)

v

THE STATE
(Respondent)

For the Applicant : - Mr. Nand, N.

For the Respondent : - Mrs. Whippy I

RULING

1. The applicant sought to vary and review the bail conditions of overseas travel restriction and the curfew hours imposed on him in the Bail order dated 9th of November 2011 on the following two grounds that he needed to attend two international conferences that are scheduled to be held in March and May 2012 in Aqaba Jordan and in Geneva, Switzerland respectively and to effectively participate in his activities as a General Secretary of the National Union of Hospitality, Catering, and Tourism industries employees.
   
2. The applicant made this application for variation and review of his bail order dated 9th of November 2011 in a notice of motion together with an affidavit in support. In his Notice of Motion the applicant sought following order;
   
   1. That the Applicant be allowed to travel and attend International Transport Workers Federation and Dockers Global Seminar at Aqaba, Jordan from 12th – 14th March 2012;
      
   2. That the Applicant be allowed to travel and attend International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tabacco and Allied Workers Association's 26th Congress and Relation Meetings from 12th Day of May 2012 to 18th Day of May 2012;
      
   3. That the curfew hours imposed on the Applicant be suspended.
      
3. The applicant testified in his affidavit in Support that he has received an invitation from the International Transport Workers Federation which is based at 49-60, Borough Road, London, United Kingdom to attend IFT Dockers Global Seminar at Aqaba Jordan from 12th -14th of March 2012. He further stated that he is schedule to travel for this seminar on the 10th day of March 2012 and schedule to return on 18th of March 2012.
   
4. Moreover the applicant stated in his affidavit in support that he has also received an e.mail circular dated 16th of December 2011 to attend the 26th Congress and related meetings of International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Association in Geneva, Switzerland from 12th of May 2012 to 18th of May 2012. The applicant is schedule to travel on the 13th day of May 2012 and return on 21st of May 2012 in order to attend the said congress and related meetings in Geneva.
   
5. In respect of the second relief that the applicant is sought in his notice of motion, he testified that as the General Secretary of the National Union of Hospitality, Catering, and Tourism Industries Employees, he is required to manage the affairs of the members of the Union which includes giving advises, attending to grievances and meeting with the members and respective hotel management on a regular basis. Accordingly the current bail condition of curfew hours imposed on the applicant is restrictive and adversely affects his work commitments in that he is required to stay home from 8pm to 6 am daily. The applicant specifically stated the difficulties and restrictions that he met in performing his duties as the General Secretary of the said Union in his affidavit.
   
6. Upon receiving the notice of motion together with the affidavit in support, the prosecution filed its objection in an affidavit of Sergeant Aminiasi Gaunavou. The prosecution objected on the following grounds that;
   
   1. The applicant has a reason to leave the jurisdiction and not to return as he is likely to face a longer imprisonment term,
   2. The invitation annexed does not name a specific person and the applicant is not the only unionist in Fiji. The applicant in his capacity as the General Secretary should have nominated another person to attend the meetings.
   3. In relation to the applicant's local meetings, the applicant has been ably attending his union meetings.
   4. The applicant is likely to rally support from overseas.
      
7. The applicant vehemently denied the contentions of the prosecution and filed his response to the prosecution's objection.
   
8. Subsequent to filing of the respective affidavits, both the prosecution and the defense agreed to have the hearing of this application of bail variation by way of written submissions. Accordingly the both parties filed their respective written submissions which I thoroughly and carefully perused and considered in this ruling.
   
9. Having considered the brief background of this application I now draw my attention to the relevant legal principles pertaining to this application of variation of bail. The relevant provision in relation to an application for variation and review of bail order could be found in section 30 of the Bail Act.
   
10. Section 30 (2) of the Bail Acts states that " A magistrate may review asiecision made by another magistrate, including a reviewing magistrate, in relation to bail".
    
11. Section 30 (7) of the Bail Aail Act stipulates that "A court which has power to review a bail determination, or to hear a fresh application under section 14(l), may, if not satisfied that there are special facts or circumstances that justify a review, or the making of afresh application, refuse to hear the review or application".
    
12. Further section 30 (9) of the Bail Act states that "The power to review a decision under this Part includes the power to confirm, reverse or vary the decision".
    
13. In view of above section 30 (2), (7),and (9) the scope of power to review a bail decision includes the power to confirm, reverse or vary the order and the Magistrate has a desecration to refuse to hear the application for review if he is not satisfied that there are special facts or circumstances that justify a review.
    
14. Bearing in mind the relevant provision in the Bail Act, I now turn to the judicial precedents on the issue of review and variation of bail conditions.
    
15. His Lordship Justice Gates (as he was then) in Iliaseri Saqasaqa v The State ( HAM 005.065;) succinctly outlined the scope of reasonableness of bail conditions, where his lordship held that " Bail condition, imposing as they must restrictions on persons awaiting trial, must therefore be reasonable and commensurate with the gravity of the offence and with the individual risks identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an opportunity to take up the grant of bail. This has been a principle of great antiquity in the common law".
    
16. His Lordship Justice Goundar held in Laisenia Qarase v FICAC (HAM 038 0f 2009) that the "The right to liberty is a basic human right. Bail for a person accused of an offence means authorization for the person to be at liberty instead of in custody, on condition that the person appears for trial. Conditional bail is granted as an alternative to pre-trial detention. Permissible conditions include the surrendering of travel documents, imposition of a residence requirement and the provision of a surety assessed in relation to the means of the accused. These restrictions on the right to liberty are consistent with international law (Wemhoff v Germany (1968HRR 550)"
    
    
17. In line with the above mentioned judicial dicta, I find that imposition of travel restriction out of jurisdiction, and imposition of curfew hours on the applicant in this instance case are consistence with the laws pertaining on Bail conditions. The applicant has his right to liberty. However there has been material change to his personal status since he was granted bail. His continuous presence in this instance case is required by the court of law wherefore his movements and personal liberty are under the scrutiny of the court of law. Wherefore, the court need to specifically satisfy that there is a special fact or circumstances to vary, alter or revoke any bail conditions which were imposed on the applicant in this subsequent application for review and variation of bail conditions.
    
18. His Lordship Justice Goundar in Laisenia Qarase v FICAC (Supra) outlines relevant factors for consideration on an application for variation of travel restrictions. Where his lordship held that "Whilst the need to secure the accused's attendance at hearings is a paramount consideration in this kind of application, the purpose of the overseas visit, the length of time the accused will be abroad and the inconvenience caused to the administration of justice are equally relevant factors for consideration".
    
19. In view of the findings of Justice Goundar in Laisenia Qarase v FICAC (Supra) the scope of the test for the variation of travel restriction is not only limited to the issue of flight risk of the accused person, but also the test has extended to the issues of purpose of the overseas visit, the length of the overseas visit and the inconvenience cause to the proceedings.
    
20. The Prosecution merely objected that the applicant is likely to rally support from overseas but failed to emphasize its contention further. I agree with the learned counsel of the applicant's submission that it is the duty of the prosecution to specifically emphasize their contention.
    
21. Despite the facts that the applicant is charged for an offence of serious in nature in this court, I do not find any relevant material facts or evidence to draw an inference that the applicant has a reason to leave the Jurisdiction and not to return. The prosecution failed to provide any material facts whether the applicant intends to do such by relinquishing his commitments, obligations and assets in this jurisdiction which I consider vital information to form such inference against the applicant. The applicant has surrendered to this jurisdiction when he was granted leave to travel overseas by the Nadi Magistrate court in an earlier occasion. In view of these findings, I do not find the applicant is posing a flight risk.
    
22. Having satisfied that the applicant is not a flight risk, I now turn to consider the issue of the purpose of these two visits and whether the applicant has a good cause to travel overseas.
    
23. The first proposed visit of the applicant is to participate at the International Transport Federation's Dockers Global network Seminar in Aqaba, Jordan which is schedule to be held on 12-14 of March 2012.
    
24. The applicant stated that he is the General Secretary of the National Union of Hospitality, Catering and Tourism Industries Employees and intends to participate at this said seminar on an invitation from the International Transport Workers Federation. The applicant annexed and marked the said invitation letter as DUM 2 of his affidavit in support for my perusal and consideration.
    
25. The said invitation letter of the Secretary, Dockers' section of the International Transport Workers Federation is an open invitation for its Affiliates Organizing Dockers for them to send delegates for the seminar. The said invitation letter does not specifically invite the applicant in person and neither does in his official designation as the General Secretary of the National Union of Hospitality, Catering, and Tourism industries employees. In such instance it is the onus of the applicant to satisfy the court that his attendance at this particular seminar is an important and positively affect the Union that he represents.
    
26. The International Transport Workers Federation is a federation of more than 600 of unions representing transport workers in more than 150 countries. The Global Network Terminal campaign is focusing to GNT in different regions of the world. In accordance with the invitation letter, it is important that Unions who attend are already organizing in a GNT or are in an advanced stage of planning to organize within a GNT. Further the invitation letter requires the unions to send delegates who are in a position to take decisions and make assurance on behalf of their union. The applicant failed to satisfy the court or provide any relevant material evidence or facts that the Union he represents is within this Global Network Terminal Campaign and he is the only authorized person in his Union who is in a position to make decision and make assurance on behalf of the union. Despite the fact that the applicant is the General Secretary of the Union, there is no any material facts and evidence before me to ascertain that his participation to this seminar is significantly important to the National Union of Hospitality, Catering and Tourism Industries employees. In view of these reasons, I am inclined to hold that the applicant has failed to satisfy the court that the purpose of his visit has a good cause.
    
27. The second proposed overseas travel is to attend the 26th Congress and Related meetings of the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Association which is schedule to be held from 12th of May – 18th of May 2012. The copy of an e.mail received by the applicant is annexed and tendered as DUM 5 for my perusal and consideration.
    
28. I again do not find that this particular E.mail invitation specifically invited the applicant by his name or in his official designation. It is an open invitation for its member organization to nominate and send delegates to the said event. The applicant failed to provide any material evidence or facts to satisfy the court that he is the only person authorized by the Union to represent the Union in such international forum and there is no authority to nominate another member to represent the Union at such international forum with delegated powers.
    
29. I reiterated my finding in paragraph 17 above. In line with my above findings, I hold that I am not satisfied that the applicant has shown any good cause to vary his bail condition on overseas travel restriction. Accordingly, I refuse the application of the applicant for variation of overseas travel restriction.
    
30. I now draw my attention to the second ground of this bail review application that is the curfew hours imposed on the applicant be suspended.
    
31. The applicant extensively explained the difficulties and restrictions that he has to face in performing his official duties at the General Secretary of the Union due to the imposition of curfew hours. He stated in his affidavit that extensive traveling, meetings with workers and employers, attending arbitrations, are part of his work scope as General Secretary.
    
32. The prosecution merely stated that the applicant has been ably attending his union meetings but did not produce any material facts to substantiate its contention. I agree with the applicant contention that his work commitments demands extensive traveling away from his home town, meetings with workers and employers, attending arbitrations in Suva. In view of these facts, I find the curfew hours on the accused could adversely affect his work commitment which might cause a detrimental impact on the members of the Union. Accordingly I am inclined to vary the curfew hours imposed on the applicant.
    
33. Having satisfied that there are special facts and circumstances to vary the curfew hours imposed on the applicant, I revoke the condition of curfew hours on the applicant. I further make an order that if the applicant is required to travel outer island resorts or travel outside his home town in respect of his official work commitment as the General Secretary of the Union, the applicant is required to inform in writing the office of the Director of Public Prosecution and the Senior Court Officer of the Criminal Registry of the Magistrates' court in Suva 24 hours prior to such event.
    

On this 6th day of March 2012

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva