Tuivuya v State [2002] FJHC 229; HAM0040D.2002S (30 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM 40 OF 2002S

Between:

WAISALE TUIVUYA
Applicant

And:

THE STATE
Respondent

Hearing: 29th October 2002
Ruling: 30th October 2002

Counsel Mr A. Wolf for Applicant
Mr W. Kuruisaqila for Staet

RULING ON BAIL

The Applicant is charged with the offence of murder. The trial is scheduled to commence on the 9th of December of this year. The Information reads as follows:

Statement of Offence

MURDER: Contrary to Sections 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

WAISALE TUIVUYA on the 3rd day of November 2000 at Lami in the Central Division murdered ALIFERETI NIMACERE.

The application is made by motion and the affidavit of Ronald Prasad, Executive Officer of the Legal Aid Commission. That affidavit states that the Applicant has been kept in the custody of the military forces since 8th February 2002 when the charge was first laid in the Magistrate’s Court, and that a further delay is likely before the trial proceeds in the High Court. This is the Applicant’s first application for bail.

Counsel for the Applicant, in both written and oral submissions said that the evidence disclosed that the deceased died when the Applicant, a reserve soldier tasked with the arrest of the deceased, fired a single gun shot from a distance.

Counsel submitted that the evidence disclosed a case of, if anything, manslaughter, and that the Applicant should, if convicted, receive a suspended sentence. He further submitted that the Applicant would appear for the trial, that he lived on his farm in Beqa with his wife and daughters and that there was no likelihood of re-offending because of the special circumstances of the case. Nor, he said, was there any likelihood of interference with witnesses. He submitted that the Applicant was prepared to abide by any conditions the court chose to impose.

State counsel opposed the application, pointing to the seriousness of the offence, the public interest in ensuring that defendants appear for trial, and the likelihood of interference with prosecution witnesses most of whom apparently are reserve soldiers. Finally, he submitted that the Applicant had a long list of previous convictions (including one for escaping from lawful custody) which suggested that the Applicant could not be relied upon to appear in court on bail.

Section 34 of the Constitution guarantees the right of every person in Fiji, to move freely throughout the country. Section 34(6) provides that a person may be detained "for the purpose of ensuring his or her appearance before a court for trial or other proceedings."

The fundamental question, on any application for bail is whether the defendant will appear in court to stand trial. However relevant considerations to assist in the exercise of this discretion are the character of the defendant, his/her family and community ties within the country, the seriousness of the offence, possible interference with the course of justice, opportunities to prepare the defence, the likelihood of further charges or of re-offending whilst on bail, and fears of public disorder where the alleged offences are particularly serious (Adesh Singh & Ors. Misc. No. 11/12 of 1988, Tak Sang Hao -v- State Misc. 003/2001S). Further, the circumstances of the remand pending trial may be a ground for granting bail (Sailasa Naba and Others -v- State HAC 0012/2000L) in addition to serious pre-trial delay (State -v- Peniasi Kata Cr. Action HAC 9 of 1994).

In applying these principles to a consideration of bail pending trial, I have also taken into account the presumption of innocence and the fact that the Applicant has a right to bail. It is for the prosecution to show the court that bail should not be granted.

There is no doubt that the Applicant has been charged with a very serious offence, and that he does have a list of previous convictions. Further the trial is due to commence on the 9th of December 2002 and is scheduled for two weeks. However, he has now been in custody for 8 months, and is kept at the military camp for security reasons (the deceased being well-known to the inmates at the prison facilities). It has been argued that the evidence of murder was inadequate.

I note that the defence at the preliminary inquiry, agreed that there was sufficient evidence for committal, and that there are a number of witness statements in the depositions which refer to the shooting incident. The depositions also contain a statement by the Applicant admitting to the shooting. I do not consider it appropriate to assess the chances of success of any defence the Applicant may wish to pursue at the trial proper. The strengths and weaknesses of the case must therefore be of limited relevance to this application because a great deal will depend on whether any of the evidence is admissible, and on whether the witnesses are available and credible.

I accept however that because a number of witnesses are also reserve soldiers, that the prosecution may fear interference with them. I also accept that bail for murder in other cases has usually been granted after a delay of more than 12 months. In State -v- Felix Keith Vusonitokalau Cr. Case No. 0005/1996S, Pain J granted bail pending trial where the accused had been in remand for 1 year and 9 months. In State -v- Jai Ram and Others HAC 002 of 2000L, Prakash J granted bail pending trial after a remand period of 2 years. In Timoci Naisake & Saula Matavucu -v- State Mis. HAM 0010D/2000S, Madraiwiwi J granted bail after a remand period of 13 months.

As Pain J said in Ashok Chand -v- The State Misc. HAM 012 of 1995:

"I agree that an accused ought not to be remanded in custody for an inordinate period. Section 6(5) of the [1990] Constitution requires that an accused should be released if not tried within a reasonable time. However there is no fixed period within which a trial must take place. Under our present system, some delay is inevitable. An accused is not automatically entitled to bail if the trial is not heard within, say 12 months. What is a reasonable period depends on the particular case and all the prevailing circumstances. It could be a shorter or longer period. In cases where bail has been granted, the prospective delay has been well in excess of 12 months."

There is clearly no "cut-off" period for the grant of bail. However the cases show that the courts will generally not countenance a pre-trial remand period for substantially more than 12 months. However, the granting of bail generally involves the balancing of several relevant criteria, delay being one of them.

In this case, an 8 month delay is not unreasonably long, particularly when a trial date has already been set for December. Further, I accept that there is a real risk that the Applicant may not appear for trial, and that there may be interference with witnesses. In all the circumstances I am satisfied that bail should be refused. However, any further substantial delay may lead to the grant of bail. This application is refused.

Nazhat Shameem
JUDGE

At Suva
30th October 2002