Talemaitoga v The State [2003] FJHC 204; HAM0013D.2003S (9 April 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NO: HAM0013 OF 2003S

Between:

SISARO TALEMAITOGA; and
OSEA BAINITABUA VOLAVOLA
Applicants

And:

THE STATE
Respondent

Hearing: 7th April 2003
Ruling: 9th April 2003

Counsel: Ms J. Nair for Applicant
Ms A. Prasad for Respondent

RULING

The 2nd and 3rd accused persons have applied for bail pending trial. The Amended Information by the Director of Public Prosecutions reads as follows:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

JOJI RAVUWAI, SISARO TALEMAITOGA and OSEA BAINITABUA VOLAVOLA on the 26th day of January, 2002 at Naselai, Nausori in the Central Division murdered TIR MURTI s/o Paras Ram.

SECOND COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap 17.

Particulars of Offence

JOJI RAVUWAI, SISARO TALEMAITOGA and OSEA BAINITABUA VOLAVOLA on the 26th day of January, 2002 at Naselai, Nausori in the Central Division, robbed TIR MURTI s/o Paras Ram of a taxi meter valued at $400.00 and $50.00 in cash to the total value of $450.00 and immediately before such robbery used personal violence on the said TIR MURTI s/o Paras Ram.

All accused persons have been in custody since January 2002. The trial is due to commence on 20th October 2003 unless an earlier date can be set in due course. The 2nd accused has applied for bail by motion and affidavit. His counsel submitted that her client had now been in remand for more than 12 months, that there was no suggestion that he would not appear to stand trial or would interfere with witnesses and that there was, under section 27(3)(c), a right to bail unless the interest of justice otherwise required. She said that the 2nd accused was willing to abide by any conditions the court saw fit to impose.

The 3rd accused applied for bail on the same grounds. Counsel also referred to the Universal Declaration of Human Rights as the source of the section 27(3)(c) right, and said that one Ratu Peni Volavola of the Fiji Electricity Authority, the accused’s uncle, was willing to stand surety for him.

State counsel opposed both applications, saying that the charges were serious, there was a good chance that the accused would abscond and interfere with witnesses and that the nature of the alleged offending led to the interests of justice demanding the accused’s continued remand. She further submitted that the delay in the case was not caused by the prosecution but by the 3rd accused’s decision to change counsel at the last minute.

All counsel made their submissions on the basis of the common law principles of bail. Counsel for the State submitted that the Bail Act was not effectively in operation because no Minister has been assigned responsibility for the Bail Act and because the Attorney-General and Minister for Justice erroneously signed the Legal Notice for the effective date of operation of the Act. I informed counsel that because this matter was not being dealt internally by the executive, I would rule on the effectiveness of the Bail Act in the course of this ruling.

However, it appears, having considered State Counsel’s submissions, that this is a matter involving a construction of the Constitution which affects the Attorney-General directly, because it is his act which is being challenged. In the circumstances the Attorney-General must be given notice that the point is being considered and will be ruled upon, so that he is given the opportunity to respond. This case is therefore not the appropriate vehicle to rule on the matter. In any event, whether or not the Bail Act is validly in force, the principles remain the same except in the case of those held in remand in excess of 2 years. However, in order that the uncertainty be settled, the next bail application in the High Court will be adjourned to allow the Attorney-General, and the DPP to make full submissions on section 103 of the Constitution.

The Constitution creates a presumption in favour of bail. The paramount question to be asked is whether the prosecution has shown that the accused will not appear to stand trial. Other secondary considerations are any likelihood of interference with witnesses, the seriousness of the charge, the likelihood of re-offending, the character of the accused and whether the accused can properly prepare his/her defence. The thrust of the prosecution’s objection to bail is the seriousness of the alleged offending. For that purpose, I turn to the depositions. The prosecution alleges that on the 27th of January 2002, the accused was found dead in a taxi parked along the Naselai Feeder Road. A red wire was tied around his neck and there was blood on his face. Witnesses saw the 1st accused with two others get into the taxi opposite the Nausori Police Station with the deceased driving. The accused persons were interviewed under caution. In the course of his interview the 1st accused purportedly showed the police the taxi meter of the deceased’s taxi. All admissions will be challenged at trial. The post mortem report states that the cause of death was manual strangulation with blunt impacts to the face and multiple lacerations causing haemorrhage to the face. The motive for the alleged murder is purportedly the robbery.

This is clearly a serious case, not only because of the charges, but because of the nature of the alleged offending. The lay witnesses are members of the accused’s community. The delay in the trial is due mostly to the 3rd accused’s own decision to change counsel, and every effort has been made to list the case as early as possible.

In all the circumstances, I am satisfied that the interests of justice require the continued remand of both accused.

The bail applications are refused.

Nazhat Shameem
JUDGE

At Suva
9th April 2003