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Waqalevu v State [2012] FJMC 88; Case 116.12 (10 May 2012)

IN THE MAGISTRATE COURT OF FIJI ISLANDS
AT SUVA

Case No: 116/12

BETWEEN:

JONE WAQALEVU
APPLICANT

AND:

STATE
RESPONDENT

Applicant : - Mr. Vakaloloma.
Respondent : - Cpl Reddy.

BAIL RULING

1. This is an application to review the order delivered by this Court in bail pending trial on 08.03.2012.
   
2. The accused-applicant, Jone Waqalevu (hereinafter referred as the Applicant), stands charged on a count for having committed the offence of 'Act with Intend to Cause Grievous Harm' punishable under Sections 255(a) of the Crimes Decree No 44 of 2009.
   
3. I will reproduce the facts considered on determining the initial bail application on the alleged offence that was committed on 22.01.2012.
   
4. The victim of the case has been the wife of the Applicant. The respondent has submitted that the victim received injuries that resulted three weeks of inpatient treatments at the CWM hospital. Further it was submitted that the victim and her children have now moved from their residence to the victim's brother's place due to fear to their lives.
   
5. The applicant applied bail due to the inconvenience resulted from his detention in remand.
   
6. I have considered contents of both parties and bail was refused by the ruling dated 08.03.2012.
   
7. When bail is refused Section 20 (3) of the Bail Act 2002 will come in to operation. It states,
   

'If bail is refused the accused person must immediately be informed of the procedure for review of bail as provided in section 30'.

8. Section 30 gives rise to review the orders made by the Courts.
   

30.-(1) A magistrate may review any decision made by a police officer in relation to bail.

(2) A magistrate may review a decision made by another magistrate, including a reviewing magistrate, in relation to bail.

(3) The High Court may review any decision made by a magistrate or by a police officer in relation to bail.

(4) The Court of Appeal may review any decision made by the High Court in relation to bail.

(5) The Supreme Court may review any decision of a magistrate, the High Court or the Court of Appeal, in relation to bail.

(6) A court may not review a decision under this Part if the court is prohibited from making a decision in relation to the grant of bail by any other written law.

(7) 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.

(8) The power to review a decision under this Part in relation to an accused person may be exercised only at the request of-

(a) the accused person;

(b) the police officer who instituted the proceedings for the offence of which the person is accused;

(c) the Attorney General;

(d) the Director of Public Prosecutions; or

(e) the victim of the offence.

(9) The power to review a decision under this Part includes the power to confirm, reverse or vary the decision.

(10) The review must be by way of a rehearing, and evidence or information given or tamed on the making of the decision may be given or obtained on review.

(11) The regulations may limit the powers of review conferred by subsections (1), (2) and (3).

9. Section 30 (8) restricts the persons whom can apply for a review under section 30. The Notice of Motion dated 09th March 2012 has been filed by the counsel for the accused applicant. This Notice of Motion is supported by an affidavit prepared by a 'Legal Executive' of the counsel.
   
10. Although the favour of the affidavit is towards the applicant, in my view, Section 30 (8) does not give rights to any other person to testify the facts which are known to the accused applicant.
    
11. However I will address the merits of that affidavit in the interest of justice. The 'Legal Executive' states that the accused had promised not to interfere with the victim (wife) and agreed to stay away with his brother. He considers this as a 'change of circumstances' since the last application.
    
12. It is clear that the counsel and the employees of the Law firm are the most interested persons at this stage to have the accused applicant on bail. One of the main reasons to refuse the applicant's previous bail application is the 'likelihood of interfering with the witnesses due to the domestic relationship of the parties'. Does the promise said to have made by the accused applicant to the 'Legal Executive' shows his genuine intention on this issue?
    
13. It is to be noted that the accused applicant himself filed a written submission on the application for review. When this Court delivered the ruling refusing bail on 08.03.2012 the counsel for the accused made an application to file an appeal. He further requested a mention date and it was adjourned to 16.03.2012.
    
14. Instead of an appeal the counsel filed this notice of motion. When the matter was called on 16.03.2012 the accused applicant filed his written statement in the absence of his counsel.
    
15. Applicant's written statement reflects on two main issues. Poor living conditions of the remand prison have been the first and his medical condition averred as the second ground. At any of the points the applicant has not stated that his intention to live apart from his family and the victim. In my view this submission takes off the trivial importance that had on the affidavit submitted by the 'Legal Executive'.
    
16. The accused applicant's first ground on review is the conditions of the remand prison due to overcrowding. I must mention that the applicant has failed to express that he himself was subjected to any inhuman or degrading treatment at the prison.
    
17. The second ground has been the lack of medical attention. The applicant requests the services of a qualified Dermatologist as he had some skin rash. Although he has asked the prison authority to facilitate him, he says that the right has been deprived. The Court was not informed since when the accused has this condition. He had not taken up this issue in his first application to this Court.
    
18. Further the Court is mindful that there is a visiting doctor of the prison. It appears that the applicant has not taken up this matter even with the visiting doctor. Suva Remand prison is visited by the resident magistrates on every other week. The prisoners are free to take their administrative and personal issues to the 'Visiting Justices'. But in this case the applicant is silent whether he asked any directives from the 'Visiting Justices' on this issue.
    
19. However I order the officer in charge of Suva remand prison to attend to his medical condition. The Court orders to refer the applicant to the Dermatologist of the CWM hospital without any delay.
    
20. Having considered the foregoing facts, I conclude that the circumstances adduced by the accused applicant does not compel the Court to vary the decision dated 08.03.2012.
    
21. Application is dismissed accordingly.
    
22. The applicant is advised to invoke his right to appeal on this issue conferred by the Section 31 (1) of the Bail Act No 26 of 2002.
    

YOHAN LIYANAGE
Resident Magistrate

10th May 2012