State v Sattar [2011] FJCA 19; Misc.31.2010 (2 March 2011)

IN THE COURT OF APPEAL, FIJI ISLANDS

Miscellaneous Action No.31 of 2010
(High Court Criminal Action No.59 of 2010)

BETWEEN:

THE STATE
Appellant

AND:

ABDUL SATTAR
Respondent

Date of Hearing: Monday, 1st November 2010

Counsel: Ms A Tuiketei for the Appellant
Ms L Lagilevu for the Respondent

Date of Ruling: Wednesday, 2nd March 2011

RULING

1. This is an application under section 30(4) of the Bail Act 2002. Section 30(4) says:

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

2. Section 35(1) of the Court of Appeal Act sets out the powers of a single judge of appeal. Section 35(1)(e) states:

"A judge of the Court may exercise the following powers of the Court:

...

(e) to cancel an appellant's bail on good cause being shown ."

...

Section 35(4) in respect of the single judge's decision to cancel bail states:

"The decision of a single judge to cancel bail under subsection(1)(e) may at the appellant's request be reviewed by the Court as duly constituted for the hearing and determining of appeals under this Act."

3. Is Abdul Sattar an "appellant" within the meaning of Section 35(1)(e) of the Court of Appeal Act? I pose the question because the present appeal motion is by the State who by Notice of Motion dated 19th August 2010 requests an order:

"(1) For an order to review the decision by the High Court to dismiss the application by the State for the revocation of bail and to review costs awarded against the State."

The answer is, I believe, that in respect of the Court of Appeal Act Section 35(1)(e), the intention of the legislature is that the powers of review is given to the Single Judge regardless of whether the instant appeal or review is brought by the appellant or the State.

4. On 15th February 2010 there was an aggravated robbery where a group of persons armed with an offensive weapon stole $35,000 from one Sunil Prakash Sharma. The allegation is that this money was in a vehicle in a suitcase in the lawful possession of Sunil Sharma and the vehicle was parked in the yard of Dee Cees Bus Company. Two men armed with cane knives used them to smash windows in the car and the suitcase was then extracted.

5. Where Abdul Sattar enters the offence arises from his knowledge of the workings of Dee Cees Buses and Sunil Sharma. Abdul Sattar had worked or was still working with Dee Cees Buses. The allegation is that there was a joint enterprise between the physical perpetrators and Abdul Sattar who provided information about the property to those that stole the suitcase.

6. When the accused appeared before Suva Magistrates Court on 10th March 2010 the case was transferred to the High Court and bail was granted to Abdul Sattar. But one of the conditions attached to bail was:

"not to interfere with police witness."

This is a common condition and it is important in the public interest because it serves to protect the substantive trial of the matter.

7. The major witness to the taking of the suitcase from the car is Jone Waqa a tyre fitter who has worked at Dee Cees Buses for three years. He was having his lunch when the $35,000 in the suitcase was stolen from the car on 15th January 2010. He is known to Abdul Sattar who is a former workmate at Dee Cees Buses. Jone Waqa has identified two of those involved in the physical stealing of the money. His evidence is important. There will not be a fair trial, if the State does not have his true evidence at trial because of intimidation.

8. In the morning of 12th March 2010 Jone Waqa was on his way to work when he was met by Abdul Sattar who was accompanied by three Fijian boys standing at the passage between the billiard centre and the Chinese Restaurant. Abdul Sattar said to him in Hindi "Back ke Re Na" meaning "watch out". Afraid that the Fijian boys with Sattar were approaching him and might do something, Jone Waqa ran away and the group departed in a black taxi. Jone Waqa then reported the matter to his boss. They wished the police to investigate. The matter was immediately referred to police who took a signed statement from Jone Waqa on the same day.

9. Both at common law and under the Bail Act, which is mostly a codification of the common law, there are two remedies available when there is a serious breach of bail conditions. Section 25 creates an offence if an accused person breaches his conditions of bail. On the other hand section 30 of the Bail Act provides extensive powers for a review by the hierarchy of courts up to Supreme Court level. The objective of review is to protect and save the pending criminal trial from interference that would impede the course of justice. The object of section 25 is to punish the person accused if convicted of what is a serious criminal offence.

10. What should have happened in my view is that when Jone Waqa made his statement to police on 12th March 2010 there should have been an application for the review of Abdul Sattar's bail under section 30. Since the criminal trial (299 of 2010 now HAM 179 of 2010) had been transferred the day before to the High Court it was appropriate that the High Court should review bail. The prosecution should have applied to the High Court under Section 30(3) of the Bail Act seeking a review of the bail decision of Mr Rajasinghe, at Suva Magistrates Court on 11th March 2010, applying for Abdul Sattar's bail to be revoked and for him to be remanded in custody. That is if the High Court found that Jone Waqa had been threatened as recounted in his statement of 12th March 2010. If Mr Rajasinghe had jurisdiction under section 30(2) it would have been more expeditious to seek review from him on the basis of changed circumstances.

11. Unfortunately no such action was taken to protect the pending criminal proceedings until 13th August 2010. The delay was then compounded by proceedings being taken under the wrong power. Section 19(2)(c)(ii) of the Bail Act states:

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

...

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

(i) ...

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

12. Section 19 is no more than a restatement of the common law setting out the principles applicable in the common law courts for a very long time on the matter of reasons for refusing bail. It is not an empowering section. It does not give jurisdiction for an appeal or review of an earlier grant of bail.

13. Things were made worse by the heading of an affidavit sworn on 13th August 2010 by Corporal 2617 Ofati which read:

"Criminal Misc. Case No. HAM 174 of 2010

IN THE MATTER of an Application for

the revocation of bail pursuant to section

19(2)(c)(i) of the Bail Act 2002, of

ABDUL SATTAR in Criminal Case No.059

of 2010 in the High Court of Fiji."

14. The matter came before Mr Justice Thurairaja on 16th August 2010. Confusion reigned. The counsel for the State asked for time to prepare written submissions. This was granted until 17th August 2010. Abdul Sattar was remanded in custody for one day. The Prison Service gave him a "zero" haircut. Mr Justice Thurairaja became diverted and confused. The police had issued parallel proceedings in the Magistrates Court under Section 25 of the Bail Act charging Abdul Sattar with "threatening Jone Waqa in breach of his bail condition." Corporal Ofati had referred to this in his affidavit in order to present the full facts. It was quite irrelevant to the review under Section 30(1) of the Bail Act. But then no one seems to have mentioned the correct power under which Mr Justice Thurairaja had jurisdiction and was supposed to be acting.

15. I said the learned Mr Justice Thurairaja became "diverted"; this was in respect of the irrelevant section 25 prosecution of Abdul Sattar. As to the confusion it is clear from his ruling that the learned Mr Justice Thurairaja, having reviewed the Section 25 offence file from the Magistrates Court discovered that Abdul Sattar after a bail hearing had been granted bail. Mr Justice Thurairaja may have thought that this was an earlier review of bail in Criminal Case HAC 59 of 2010; the reality was that it concerned bail pending trial of the section 25 offence.

16. The main hearing by Mr Justice Thurairaja was held on 16th September 2010. His only comment in his ruling of 28th September 2010 on the application for revocation of bail on the serious ground advanced, was:

"State has not complained to the High Court but on the 16th of August 2010."

Justice Thurairaja did not dismiss the application for review in Criminal Case HAC 59 of 2010 under section 30; in paragraph 27 of his ruling he said:

"Considering all available materials I find that the State has misled the Court and caused severe inconvenience to the Respondent therefore I find that the State should pay cost to the Respondent for this inappropriate and improper application."

17. In my view whatever the delay this Section 30 application before him was important in order to safeguard the course of justice in Criminal Case HAC 59 of 2010. As section 19(2)(c) says:

"as regards the public interest and the protection of the community."

In my view, therefore, whatever the inadequacies of the application by the State, the priority should have been to protect the High Court Criminal trial.

18. In his ruling Mr Justice Thurairaja seems to have thought that section 25 offences and section 30 reviews are the same thing.

19. His conclusion as to "inappropriate" and "improper" application by the State are predominantly coloured by his view of the handing of the section 25 offence by the police officers in charge of prosecuting that quite separate matter.

20. In my opinion the only criticism of the State's section 30 application for a review is in the delay between 12th March 2010 and 13th August 2010 when the application commenced. But the delay does not render safeguarding the course of justice in Criminal Case HAM 174 of 2010 "inappropriate" or "improper". Nor was there anything oppressive about the section 30 application. Section 30 is about the public interest while an offence under section 25 is about conviction and punishment. There is no element of double jeopardy.

21. In my view it follows that the orders for costs in favour of Abdul Sattar in respect of opposing the Section 30 application were not appropriate on the facts and should be set aside.

22. Mr Justice Thurairaja seems to have regarded a supposed error on the part of Corporal Ofati as particularly important within what he regarded as an "inappropriate" and "improper" application. In paragraphs 3 and 11, where himself stating the facts, Corporal Ofati correctly refers to the threatening of Jone Waqa as taking place on 12th March 2010. However, in paragraph 4 Corporal Ofati is not reporting the facts but quoting the charge in the section 25 proceedings. The officers in that case made an error and in the Particulars of Offence stated the day of the threats as 12th February 2010. That is to say they got the month wrong. Since the theft of $35,000 only occurred on 15th February 2010 it is an obvious error. But where a deponent is quoting from a document they must do so correctly including mistakes if any. It should not in any way be a matter on which Corporal Ofati deserves censure. In my experience where such an error occurs within a quotation it is proper to draw attention to the fact of error by putting in brackets after the error the Latin word (sic). It means in English (thus) and is an indication to the reader that in the text quoted there is an error which has been spotted by the deponent, and in this way the error is immediately seen as an error by the Court.

Review of Bail

23. In this application I have the jurisdiction to decide whether Jone Waqa was threatened by Abdul Sattar on 12th March 2010.

24. I note this occurred two days after the appearance of all four accused at Suva Magistrates Court and the transfer to the High Court. By the 12th March 2010 the four accused would have known that Jone Waqa having observed the window smashing and the heist of the suitcase was a vital state identification witness in the case against these two persons.

25. I note also that Abdul Sattar would know the arrival at work habits of Jone Waqa his erstwhile workmate. Then there is the presence of the three Fijian boys; they were there to add, strengthen and underline the threat. In my view it is not a coincidence that these three people had arrived at the passage between the Billiard Centre and the Chinese Restaurant, a place known to be Jone Waqa's route to work. They were there also at 7.00 a.m. the time known by Abdul Sattar as the time Jone Waqa would be passing there on his way to work. If persuasive threats had to be made, then Abdul Sattar since he knew Jone Waqa would have to be there to point him out.

26. I note the immediate complaint to Temo at Dee Cees and the immediate complaint to the police. In my view any important witness who was waylaid, who had to run away would be in fear of assaults from these people. I believe Jone Waqa when he says he was and is in fear.

27. For all these reasons I am satisfied that the facts described by Jone Waqa are true. To some extent the trial is already compromised; it is in the public interest that there be action to safeguard the trial. I order that Abdul Sattar's bail be revoked. Either I or a High Court Judge will have to sign the necessary order and I will hear from the State after delivery of this ruling as to what has to be done to ensure Abdul Sattar's re-arrest and remand in custody pending trial.

The Orders

(1) That the costs orders in the Court below be set aside.

(2) That Abdul Sattar be re-arrested and remanded in custody until trial or further order.

William R. Marshall
Resident Justice of Appeal