Biumaiwai v The State [1989] FJHC 19; HAM0016d.1989s (15 December 1989)

IN THE HIGH COURT OF FIJI
AT SUVA
Criminal Jurisdiction

MISCELLANEOUS CASE NO. 16 OF 1989

Between:

JIMIONE BIUMAIWAI
TIMOCI LEWENIKAI
Applicants

and

THE STATE
Respondent

Mr. K. Vuetaki for the Applicants
Mr. B.I. Singh for the Respondent

RULING

This is an application for bail pending trial or more correctly pending a preliminary inquiry yet to be held in the Suva Magistrate Court.

The applicants are jointly charged with an offence of Murder - when they were charged is not disclosed in the affidavits filed in support of the application as it should have been.

I have however perused the relevant Magistrate Court record which discloses that the applicants were first charged on the 31st of October 1989 and have since then been continuously remanded in custody over several successive adjournments of the case. They have therefore been in custody now for some 6 weeks.

It is noteworthy that this present application was filed 4 weeks after the applicants were first remanded in custody and before the completion of the preliminary inquiry. Accordingly, this court has not had the valuable assistance often to be gained from a perusal of the depositions and must rely solely on the assertions of State Counsel as to the nature and strength of the prosecution's evidence in the case.

It is trite to say that as a matter of settled practice in this Court, bail is rarely and sparingly granted to persons charged with Murder save in the most compelling circumstances.

In presenting the application learned counsel for the applicants urged 2 principal grounds which it is said gives rise to exceptional circumstances.

These were that the applicants required to be medically examined for injuries they allegedly sustained at the hands of the police whilst being interrogated and secondly, that the applicants had an 'alibi' for which the names of 9 potential witnesses have been furnished.

As to the first of these grounds the affidavits filed are quite inadequate. For instance, it is not known whether the applicants were refused medical examinations requested by them of the authorities in prison nor is it anywhere disclosed that there had been an unsuccessful attempt to have them examined by a private doctor as has occurred in several instances in the past to the knowledge of the court.

Learned State Counsel in opposing this first ground stated that medical examinations were conducted on both applicants during the course of the police investigations and would be available at the appropriate time. Furthermore, counsel argues there are facilities in prison whereby the applicants can be medically examined.

Additionally, the original Magistrate Court committal or remand warrants of the applicants dated the 31st of October, 1989 carries the following handwritten "entry" in the margins:

"The accused to be examined by the Doctor at Korovou."

Clearly the court itself had requested a medical examination and although nothing is contained in the court file to disclose if the requested medical examinations were ever carried out it would not be unreasonable to assume that the prison authorities would comply with the not unreasonable request.

In the absence of clear affidavit evidence to the contrary this court is unwilling and unable to so easily conclude that the liberty of the applicants is a vital prerequisite to their being medically examined. This ground accordingly fails.

The second ground as already pointed out is that of alibi. In this regard also the affidavit evidence is quite unhelpful. It purports to be based on a bare hearsay assertion of the deponent, a relative of the applicants, and is worthless.

Furthermore, even if it were to be deposed to by an 'alibi-witness', nevertheless the matter is one that is exclusively a question of fact and credibility for determination in the trial proper.

Needless to say in the absence of the depositions the "time" when the incident is alleged to have occurred is unknown to this court. What is known however is that both accused are alleged to have confessed to the crime. Here too the question of the voluntariness or truth of the confessions as learned State Counsel correctly points out are matters for determination at the trial.

There is nothing exceptional raised in this application as presently framed which would cause me to depart from the settled practice of the court when considering applications of this nature.

The applications are accordingly refused.

(D.V. Fatiaki)
Judge

Suva,
15th December, 1989.

HAM0016D.89S