State v Pe [2004] FJHC 164; HAC0024X.2004S (25 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0024 OF 2004

STATE

v.

SAVENACA PE

Hearing: 22nd October 2004
Ruling: 25th October 2004

Counsel: Mr. W. Kuruisaqila for State
Accused in Person

RULING ON BAIL

The Applicant makes a further bail application pending trial. His previous applications (on the 23rd of August and 13th of September 2004) were refused on the basis that he is unlikely to surrender to custody because he has ten previous convictions for escaping from lawful custody. He now makes this application on the sole ground that the conditions of his custody are inhumane and degrading and a breach of section 25 of the Constitution.

In Senijieli Boila and Pita Nainoka HAC0032.2004, I found that the conditions of the cells in the Awaiting Trial Block at Korovou Prison to be inhumane and degrading. Where an inmate is held in any of the cells visited by me on the 5th of October 2004, I have no option but to grant bail, because the right under section 25 of the Constitution is an absolute, unqualified and non-derogable right.

In this case the Applicant was held in such a cell since the 19th of July 2004. On the 5th of October, the High Court judges of the criminal jurisdiction of the High Court, visited the Korovou Prison. On the 8th of October 2004, the Applicant was moved to a dormitory. The conditions of the dormitory appear to be far superior to the remand cells and appear to comply with the UN Minimum Standard Rules, on the information I have been given. The Human Rights Commission in Senijieli Boila and Pita Nainoka (supra) agreed that bail could be refused in that case, because of the high risk of absconding by both Applicants on the condition that both Applicants were remanded in the dormitory until trial. That might have been the position in this case. However, on the 19th of October 2004, the Applicant appeared in court for further hearing of this application and said that he has now been moved to the main cell block where the conditions are worse than in the Awaiting Trial Block. Further, he states that he is in this new cell because he with others went on hunger strike to protest the prison conditions.

I make no comment about the hunger strike. However I do not have any confidence that the Applicant will be housed in the dormitory until trial. Indeed the Officer-in-Charge of the Prison, who gave evidence in Senijieli Boila and Pita Nainoka confirmed that the Applicant has been moved out of the dormitory and into a cell in the Main Cell Block.

I consider as Winter J did in State v. Leone Vakarusaqoli, Tawake Cakacaka and Kelemedi Dreu HAC0023.2004, that the Applicant has had to endure enough whilst in remand. I consider that the conditions in which he has been held since July 2004 to be in breach of section 25 of the Constitution. There being no prospect of a change to humane accommodation I have no option but to grant bail on conditions.

The conditions are that he must provide one surety as the sum of $500, he must provide his own recognisance of $500, he must not speak to or approach any of the prosecution witnesses in the case, he must report on Mondays, Wednesdays and Fridays at the Valelevu Police Station between 6am and 6pm and must attend court for trial on the 10th of January 2005.

Bail is granted on these terms.

Nazhat Shameem
JUDGE

At Suva
25th October 2004