Talemaitoga v The State [2004] FJHC 194; HAM0012 & 0018.2004 (21 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

MISCELLANEOUS CASES NO. HAM 12 & 18 OF 2004

IN THE MATTER of Applications for Bail Pending Trial in Criminal Case No. 8 of 2002 in the High Court of Fiji at Suva.

BETWEEN:

SISARO TALEMAITOGA
JOJI RAVUWAI
Applicant

AND:

THE STATE
Respondent

Hearing: 20th April, 2004
Ruling: 20th April, 2004

Counsel: Ms. B. Malimali - for 1st Applicant
Mr. F. Haniff - for 2nd Applicant
Mr. P. Bulamainaivalu - for the State

EX TEMPORE JUDGMENT

Introduction

These are fresh applications for bail pending trial. The accused are charged with the robbery and murder of a taxi driver on the 26th of January 2002. At interview it is said that the applicants admitted the offending. The allegation is a very serious one. The applicants are first offenders. They have no history of court order defiance. They have no relevant criminal history.

The applicants have been in custody since January 2002. The application is primarily based on section 13(4) of the Bail Act 2002. This section provides that the Court “must” release a person charged with an offence once they have been in custody for over 2 years.

Counsel for the applicant Talemaitoga has provided a helpful chronology of events.

The chronology omits certain concessions made by these applicants during the course of the two-year period they have been in remand. These concessions made during various calls of the case are detailed in the judges notes contained in the main trial file.

1. On the 21st of October 2002 Mr. Ravuwai’s then counsel asked for trial in March 2003. Counsel’s request was granted. This is a grace period of 5 months.
   
2. On the 10th of March 2003 when the trial proper was due to start it had to be vacated because the third accused (not a party to these bail applications) by his counsel was not available to proceed with the hearing. However, Mr. Ravuwai was not available until July and Mr. Talemaitoga’s counsel requested that a new fixture not be set until June. That is a grace period of 3/4 months in respect of each applicant.
   
3. The trial was then set to proceed on the 10th of November. The case again had to be adjourned because the third accused counsel was not ready to proceed with the trial. At this time Mr. Talemaitoga’s counsel consented to the case not being set until April of 2004. This is a grace period of 5 months.
   

Mr. Ravuwai’s counsel observes that in respect of the legal vacation, this period should be excluded and I agree. He also indicates a willingness on the part of the accused to proceed to trial at all times. He says it was either systematic or counsel unavailability at the root of these grace periods.

I am prepared to accept that submission in part.

I record in respect of the consent given by Mr. Ravuwai’s counsel on the 10th of November that Counsel for the co-accused Mr. Talemaitoga specifically reserved his client’s position and would not consent to the fixture set for the 10th of November being vacated.

In summary by the process of consent or at counsel’s direct request both of these applicants have been granted their requests for a total grace period of 9 months each before the trial proper commenced. That is without any discretionary adjustment to allow for legal vacation or systematic delay.

These delays in proceedings are important. The basis of applications under section 13(4) of the Bail Act 2002 are specifically subject to the provisions of sub-section 6.

This sub-section provides that in calculating a 2-year period in section 13(4) the Courts should exclude any period of delay caused by the “fault” of the applicant.

In this regard I concur with the observations of my brother Justice Gates in the State v Albertino Shankar and Francis Narayan Cr. Action HAM0014.2003 where at page 12 he says: “in a sense the non-availability of defence counsel on 2 occasions and the refusal to accept his counsel by accused one are to be considered as “faults” in the process of litigation attributed to the two accused. A certain amount of discretion may have to be exercised by the courts on occasion to alleviate the harshness this approach. But I read “fault” in section 13(6) to mean “litigation fault for which the accused is to be held responsible” as opposed to “personal fault of the accused”.

His honour went on to find that there were months to be deducted from the qualifying period spent in custody for the purposes of section 13(4) and 6 as the accused were granted various grace periods to suit their convenience or the convenience of their counsel before a substantive trial was commenced.

It is therefore my first finding that by the operation of section 13(6) I can safely exclude a period of 6 months from the accruing time the applicants have submitted that they have been in custody. The accused by counsel assumed responsibility for those delays for the purposes of section 13(4). The delays should be excluded from the calculation of time spent in custody. Accordingly I find when the adjustment is made that the accruing time in custody is now some 20 months for the purposes of assessment under section 13(4) of the Bail Act 2002.

I am however troubled by the length of time of these accused have spent in custody awaiting trial. The application does not end here. There is an assumption of entitlement to liberty the State must rebutt. I now proceed to consider the provisions of section 19 of the Act and weigh up the 3 statutory considerations. The onus throughout in these applications rests on the State.

Likelihood of Surrender to Custody

The applicants are aged 20 and 21. They still reside with and are looked after by extended family and parents. They have no relevant previous convictions. They have a good support network that is likely to ensure they will surrender themselves to the custody of the Court for the purposes of trial. However, balanced against these positive aspects of their application is the extreme seriousness of the allegations they face. At present it appears clear that they admitted the offence of robbery during the caution interview and charge statements. There is naturally a desire in all of us to avoid fronting up to onerous responsibilities. However, I have formed the view on a very fine balance that both of the accused despite the charges they face would with the support of their sureties surrender themselves for the purpose of these proceedings.

Interests of the Defendants

This trial is set to commence on the 5th of July, 2004. The applicant accused have been in custody for some 2 years and 2 months. The routine of remand prison life is now something with which they are familiar. They have access to their lawyers. They have no hindrance in terms of preparation of their cases. They have advanced no special or personal circumstances such as employment, education, care of dependants or incapacity that indicate bail would be better for them. There is nothing advanced in counsel’s submission in this regard.

The trial will proceed within the next 2 months. In my view allowing these accused the enjoyment of their liberty for 2 months may be more cruel then kind. If they are convicted of one or both of these offences then it is likely they will spend a considerable time in jail. To grant them their freedom now and have them enjoy a liberty that they have surrendered only to have that ripped away at trial is in my view a harsh penalty that goes against their interests. In my view their interests will not be served through the granting of bail for such a short period of time and immediately before trial. However, Mr. Haniff for Ravuwai submits to the Court that his client appreciates those risks and nonetheless seeks bail. Ms. Malimali agrees. Again on the balance I cannot refuse bail on this ground.

Public Interest and Protection of the Community

There is nothing in the background of either of these applicant accused that indicates an evil or bad upbringing and a wanton disregard for the law such that the community might look to the Court in this application and demand protection.

However, the public interest factor is reflected in three considerations. Firstly, that this trial proceed on time, unhindered and uninterrupted. Second, that a public confidence is maintained by the appropriate security of accused charged with most serious offences. The third consideration is the possibility of interference with prosecution witnesses 7 and 8 the younger brother and mother of Mr. Talemaitoga.

We are on the eve of trial. If I were to grant bail even on the strictest terms in my view there was a risk that one or more of the witnesses presently scheduled for the hearing may even unintentionally be affected by the grant of bail this time. Put simply a grant of bail to these accused at this time is perhaps not worth the risk. That risk can however be ameliorated by the imposition of strict conditions. I cannot refuse bail on this ground.

Conclusion

The trial is 2 months away. There is much preparation to be done by the defence to meet these serious charges. That preparation in my view would be enhanced by the applicants remaining in custody pending hearing without the distraction of reforming attachments to friends and family during a short period of liberty. They are however presumed to be entitled to bail. By a very narrow margin the State have not convinced me that bail should be declined.

However, there will be strict conditions that I want enforced. If any condition is breached I expect the State to take appropriate steps to estreat bail and bring the accused back before me.

The condition of bail will be attached as a schedule to this extempore judgment. I intend to grant bail from tomorrow after the applicants and their sureties have come to Court to hear me read these conditions. Bail will not be granted until the terms of bail have been understood, acknowledged and met.

Gerard Winter
JUDGE

At Suva
21st April, 2004