Walli v State [2001] FJHC 213; HAM10.2001 (13 July 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASE NO. 10 OF 2001

IN THE MATTER of an application for bail in Criminal Case No. HAC 005/1999.

IN THE MATTER of an application pursuant to Criminal Procedure Code and in particular section 108(3) Cap.21 and under the inherent jurisdiction of the High Court for bail pending retrial by the High Court.

Between:

DANIEL AZAD WALLI s/o Azad Walli
Applicant

And

STATE
Respondent

Mr. A.K. Singh for the Applicant
Mr. J. Naigulevu (DPP) for the State

DECISION

The applicant Daniel Azad Walli (hereafter referred to as the ‘applicant’) by Motion dated 25 May 2001 supported by an affidavit is applying to Court for an Order that the applicant who is charged for the offence of murder contrary to section 199 of the Penal Code Cap.11 be released on bail pending his retrial at the High Court, at Suva.

He said that he was in Police custody from 12 January 1999 to 15 January 1999 when he was formally charged. Thereafter he was kept in custody until 20 September 1999.

On 24 May 2001 the Court of Appeal set aside his conviction and sentence and ordered a retrial.

Background

The applicant with one Nanise Wati was charged with the murder of Reena Bibi on 5 October 1996. The trial which commenced on 12 August 1999 concluded on 20 September 1999 when both the accuseds were found guilty of murder and sentenced to life imprisonment.

The applicant appealed to Court of Appeal but Nanise Wati did not.

The Court in its Judgment stated, inter alia, that ‘we are driven to the conclusion that this evidence put to the assessors as corroboration did not satisfy the test of implicating the accused which has now become formally established as part of the criminal law of Fiji’. The Court allowed the appeal and quashed the conviction and sentence and ‘a new trial’ was ordered.

Applicant’s submission

Through his counsel Mr. A.K. Singh, the applicant seeks bail pending retrial. Mr. Singh referred the Court to a number of cases in which bail was granted in murder cases. He says that the applicant has been in custody for sometime before his trial. He submits that because of shortage of Judges this case is not likely to be heard early. He said that the accused’s appeal was allowed because of misdirection by the learned Judge in the High Court. The prosecution will have difficulty in proving solely on evidence of accomplice. Mr. Singh said that the applicant is prepared to comply with any condition which the Court is minded to impose in granting bail. The applicant lives at 24 Sawani Street, Samabula; his father is willing to sign as surety; he is single and was a casual worker at the dock.

Director of Public Prosecution’s submission

The Director of Public Prosecutions Mr. Naigulevu opposed bail. He submitted that the cases referred to by Mr. Singh were those relating to persons in custody before trial. The case here he says is different. He said that in this case there was a trial of the applicant; he was convicted and sentenced after the unanimous opinion of the assessors that the applicant was guilty. The only thing is that the Court of Appeal found that there was a misdirection on corroboration on the part of the trial judge.

Mr. Naigulevu referrred the Court to Fatiaki J’s Judgment in Adesh Singh, Uma Shankar, Battan Singh v The State 34 FLR at 1 which sets out factors which will guide judicial officers dealing with application for bail in the exercise of their discretion. He said that this was a serious case with strong evidence against the applicant in the form of witness who was there at the time of the alleged offence. He is the accomplice referred to by Mr. Singh. The conviction was set aside on technical grounds because of misdirection by the learned Judge.

The DPP also submitted that there is also the likelihood of interference with prosecution witnesses if bail is granted. Other evidence apart from the evidence of the accomplice has to be considered, namely, compelling evidence of post-mortem report and ‘fatal slash to the neck completely severing the trachea’. This he says is the nature of the offence.

He further submitted that this is not a proper case to allow bail. He said that he is ready for trial so long as he gets a date. It will take 3 weeks at the most to complete the trial.

Dealing with the issue

This is an application for bail pending retrial. The provisions relating to grant or refusal of bail are contained in section 108 of the Criminal Procedure Code (as amended by Act No. 37 of 1998). In s.108(4)(a) it is stated that "the High Court may - (a) in its original jurisdiction grant or refuse bail upon such terms as it considers just;"

I have considered the submissions made by both counsel. It is not disputed that bail has been granted in murder cases pending trial. Mr. Singh has referred the Court to a number of cases in this regard, namely, cases before trial. Similarly, it is not that bail cannot be granted on accused’s retrial. In the English Criminal Appeal Rules 1968 rules 3 and 4 (vide Archbold 2000 para 7-189 and 7-190) there is specific provision as to the mode of making an application for it.

As pointed out by the DPP this case is different as it is an application for bail pending retrial. In any case Fatiaki J’s judgment in Adesh Singh & Others (supra) sets out the matters which ought to be taken into account in granting or refusing bail in the exercise of the Judge’s discretion.

In the light of the facts of this case, in so far as they are relevant to this application and to some of which the Court’s attention has been drawn, I am inclined to agree with the DPP in his submission in opposition to bail. It is only about 7 weeks ago that the Court of Appeal allowed the Appeal in favour of the applicant. This is a serious case and looking at the nature of the case and the circumstances of its commission, interference with witnesses cannot be ruled out. What was possible before trial regarding the granting of bail cannot be taken for granted that bail will be allowed after trial. Each case will have to be looked at on its own facts. That is what I have done here.

Mr. Singh’s belief about the present shortage of Judges is his own view and is not shared by this Court. The High Court in Suva is functioning normally and there is no indication from the Court that it is in difficulty about setting a date for trial. As I said before, it was only about seven weeks ago that the applicant knew of the result of the appeal. I notice that both the DPP and Mr. Singh are ready to take a hearing date. Once I have given my decision on this application it will be up to Hon. Justice Shameem who is in charge of the Criminal Division of the High Court to fix a date for trial.

At this moment in the light of the submission in opposition made by DPP in the exercise of its discretion the Court feels strongly that the applicant ought not to be released on bail looking at the nature of the accusation and the severity of the punishment which conviction will entail.

At this juncture it would be a very inadvisable step to turn the applicant for the alleged crime loose on society. I should not be misunderstood when I say this, for a man is presumed innocent until proven guilty. The applicant is always at liberty to make a fresh application in due course at an appropriate time should he wish to do so.

For these reasons the application for bail is refused. I am sure the Criminal Court will give the trial of this case top priority as soon as practicable.

D. Pathik
Judge

At Suva
13 July 2001