Naceva v State [1997] FJHC 269; HAM8D.1997 (29 April 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISC. APPLICATION NO. 8 OF 1997

Between

ROMANU NACEVA
TUETA NUKUVEIWAQA
URAIA JEKE
ILIASERI SAQASAQA
ILISE LEWENI
Applicants

And

THE STATE
Respondent

Counsel: Applicants in person
Ms R. Olutimayin for Respondent

Hearing: 29th April 1997

Decision: 29th April 1997

ORAL DECISION OF PAIN J
ON APPLICATION FOR BAIL

The five accused are charged with murder. Each applies for bail. Two earlier applications have been refused.

Three of the applicants are in their early twenties. The other two are aged 31 and 45 years. Each advances personal family reasons for being released on bail.

In this case there are no exceptional personal circumstances that would justify the grant of bail on a charge of murder. The issue that arises here is the right given to each applicant by section 6(5) of the Constitution. This provides that a person who is arrested and detained shall be released if he is not tried within a reasonable time.

Cases in which bail has been granted on this ground on charges of murder were recently reviewed by me in Kuldip Singh v The State (Misc.application No.6 of 1997. The Court has made it clear that bail will be granted where this right is infringed to the extent of requiring such grant.

In this case the offence is alledged to have been committed on the 4th of December 1995. The five accused were charged with murder and appeared in the Magistrates Court on the 4th January 1996. However, it does appear that at least one of them, Uraia Jeke, may have been charged early in December for a lesser offence and may have been remanded in custody since that date.

In any event, all five accused have remained custody since they first appeared on this charge in the Magistrates Court on the 4th of January 1996. This means that they have all been in custody for just on sixteen months although at least one of them may have been in custody for a month longer.

I agree with Counsel for the State that if a fixture could be given shortly then bail would not be appropriate. However, the Court is not in a position to allocate an early fixture. There are a number of reasons for this but two in particular should be mentioned.

The two judges allocated to criminal trials already have fixtures that will continue until some time in June. There are other urgent cases that are waiting to be tried. The further factor that is likely to cause delay relates to representation. Each applicant has been granted legal aid. Each must be separately represented. The Court of Appeal in

Tevita Rosadrewa and Iowane Taroga v The State (Criminal Appeal No.1 of 1996) allowed an appeal where the two appellants were "not separately represented as they should have been". This is a significant matter in the present case because of the number of accused and the differences in the evidence against each of them. This requirement for separate representation is likely to impose enormous problems. At times there has been difficulty in obtaining a single legal aid counsel for a trial in the High Court. The prospect of obtaining five counsel who are prepared to take a legal aid brief and then arranging a fixture to suit the calendars of all five counsel may be rather daunting. It is a matter that the applicants must take up with the registry immediately. This matter must be resolved as soon as possible.

Clearly the trial will not take place for at least several months. A continued remand in custody of these applicants for a substantial period is a clear infringement of their rights under the Constitution. In similar cases heard in this Court in recent times bail has been granted despite the gravity of the alleged offending. These applicants are likewise entitled to bail. Such bail will be on strict terms to ensure their attendance and good behaviour and to ensure that there is no interference with the due hearing of the trial.

Accordingly bail is allowed to all accused on the following terms:

1. A recognizance of $2,000 with two sureties for $2,000 each.

2. To report to the Police at Lami Police Station on Tuesdays and Fridays between 7 a.m. and 6 p.m.

3. To reside permanently and continuously as follows, Romanu Naceva, Iliaseri Saqasaqa and Vilisi Leweni at Navunisoco Island and Uraia Jeke and Tuela Nukuveiwaqa at Suvavou village and not to move from those places without the consent of the Court.

4. Not to visit or go to QAUIA village at any time.

5. Not to directly or indirectly communicate in any way with any prosecution witness.

6. To abstain from taking any alcoholic liquor during the continuance of bail.

7. Leave is reserved to the Director of Public Prosecutions and to each applicant to apply for cancellation of bail or variation of any of the terms thereof.

Justice D.B. Pain