Seniloli v The State [2004] FJHC 204; HAM0029D.2004 (19 May 2004)

HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case HAM0029.2004

JOPE NAUCABALAVU SENILOLI

V

STATE

Fiji High Court, Suva
18 May, 19 May 2004
Gates J

RULING

Bail pending trial; Bail Act 2002; application for variation; interim relief of conditions; release of passport for overseas travel for medical review; opposed application; evidence on which bail court should act; regulations yet to be made; direct evidence from applicant unless court considers other information sufficient; need to avoid arbitrariness or unfairness; equality before the law s.38 Constitution; weighing of factors; assessment of likelihood of attendance for trial s.17(2) Bail Act; risk of delay to trial.

Mr M. Raza for Applicant [Accused 1]
Mr G. Allan for State

[1] The applicant applies for variation of bail, for interim relief from one of the conditions of his bail, for release of his passport in order to travel overseas for a general medical review. He is awaiting trial before the High Court with 5 others on an information containing 2 counts. Those counts allege that the applicant took an unlawful oath to commit a capital offence, contrary to section 5(b) of the Public Order Act, Cap 20 and that he took an unlawful oath to engage in a seditious enterprise contrary to section 6(b) of the same Act.

[2] The applicant filed a Notice of Motion on the 17 May 2004. The matter came on before me in open court the next day, after the papers had been served on the Director of Public Prosecutions for the State. The application is opposed by the State.

[3] An earlier application for variation of bail had been entertained and allowed in the case of Accused 6 [Rakuita Vakalalabure]. This was to allow that Accused, the Deputy Speaker to Parliament, to attend a Forum Presiding Officers Conference in Tuvalu as part of his official duties. The State had not opposed that application. The application had been made in April for travel on 21 April 2004. The passport duly released to Accused 6 was returned to the court immediately upon his return on 29 April 2004. The trial is fixed for commencement on 15 June 2004, and is estimated to last 4-5 weeks.

[4] Shameem J has seisin of this case and she is the trial judge. Presently she is on leave and has asked me therefore to hear this application.

[5] Filed with the Notice of Motion was the affidavit of one Hemant Kumar who is a legal executive in the employ of the applicant’s solicitors. The applicant himself did not provide an affidavit setting out his reasons for wanting the release of his passport. Though the affidavit of Hemant Kumar did not set out the full terms of the applicant’s bail, Mr Allan informed me that the applicant had been granted bail by the High Court set at $10,000 in his own recognizance and with surrender of his passport.

Necessary form and sufficiency of evidence

[6] The Bail Act 2002 makes for general provisions as to court bail [section 14]. Section 14(5) states that the regulations may make provision with respect to the manner of making application to court in relation to bail. The Minister (the Attorney-General) is empowered, with the approval of the Chief Justice, to make regulations by virtue of section 32 of the Act inter alia:

“(a) with respect to the manner of making application to a court in relation to bail.”

No regulations have yet been made.

[7] However the courts prefer to act on evidence, and if possible, direct evidence. In bail applications affidavit evidence has always been permitted, though oral evidence could be accepted. Usually oral evidence does not allow the other party sufficient notice and therefore an opportunity to counter such evidence with opposing evidence. Mr Allan rightly complains that the affidavit first filed was deposed to by the legal executive and not by the applicant. He submits that it is merely hearsay of the facts and of no weight.

[8] I asked Mr Raza if the applicant was ill or incapacitated and he said no. Obviously an applicant who is too ill to depose could have the foundations of his application laid through another deponent. In an unopposed urgent application, the court could even act on counsel’s assurances alone. What will be sufficient will depend upon the nature and circumstances of the application. Disadvantaged unrepresented applicants will receive some indulgence. The courts will be flexible to accommodate genuine necessities, yet careful to avoid arbitrariness and inconsistency.

[9] Unfairness is often avoided by applying well established legal principles and rules. I note that in Accused 6’s application for variation the affidavit was deposed to by a member of the staff of the Secretary-General to Parliament. That deponent had direct knowledge of the Deputy Speaker’s invitation to attend the forum and of its details, whilst the applicant appeared in person to urge the application before the judge.

[10] In the instant case there is no impediment to the filing of an affidavit by the applicant himself in the normal way. Accordingly I asked Mr Raza for this to be done and for the affidavit to contain an undertaking that the applicant would return for his trial and in time for the commencement on 15 June 2004. The principle of equality before the law, a right protected by section 38 of the Constitution, should be applied punctiliously in the criminal courts. Such applications should be approached with courtesy but without regard to the civilian status of an Accused person. The applicant is the holder of the high office of Vice President of Fiji. This matter was put back to today to allow Mr Raza to provide that proper sufficiency of evidence.

State’s objections

[11] The State’s first two objections are that the applicant faces serious charges and that this application to leave the jurisdiction comes on the eve of the trial. The applicant wishes to leave Fiji on 24 May and to return on 4 June 2004, 10 days before the trial commencement date. The risks in such cases are either that the trial might get delayed or that the applicant might not appear for his trial. With 6 Accused jointly charged, and a 4 week trial anticipated, these are serious considerations to be weighed.

[12] The State says there is an unspecified need to go overseas. For what medical purpose is it necessary to travel now? The exhibits to the affidavit do not greatly assist. The letter of the Acting Official Secretary apologises to the cardiologist for the shortness of the notice seeking an appointment. He seeks for His Excellency a medical review for “further medical dental and eye assessment/review.”

[13] The next exhibit, a letter from an ophthalmology registrar, reports on an examination carried out, almost 7 months ago, on 31.10.03. The doctor noted “vision on both eyes are normal (6/6) with corrective glasses.”

[14] The last exhibit from a Principal Medical Officer at the CWM Hospital dealt with the condition of hypertension. This report was written on 11 November 2003. The problem appeared to be under control by medication. Other data on the report was not indicative of any, or any urgent, need for attention, nor did the doctor so indicate.

[15] The pre-trial conference in this case is fixed for 24 May 2004, the day the applicant wishes to travel overseas. Mr Raza answered this by saying that his client has confidence in him, that he as counsel was due to have a conference with his client the next day [today] and concluded by stating that this was not a frivolous application. He said he and his client were ready for the trial.

Conclusion

[16] The applicant has today filed his own affidavit in support. He confirms the material in Hemant Kumar’s affidavit and says he wishes to undergo further medical review in Sydney. He said he did not suffer from any serious illness. He explained he could not travel earlier because of the President’s own absence overseas for medical treatment. The applicant undertook to be back well before his trial.

[17] It might be thought wise for an Accused to be present for a pre-trial conference so that he can readily approve the agreement of matters where necessary, for the conduct of the trial. However I can rely on senior and experienced counsel such as Mr Raza when he says that he and his client are of one mind and that no prejudice will result if the applicant is away for this week. There would still be a few days left after his return and prior to the trial, for his client to sign any agreed facts document if necessary, or to attend to last minute matters between the litigants.

[18] This is an unusual application in that it comes on the eve of the trial and does not concern an already identified need for urgent medical treatment. However in weighing the various objections, I consider it more likely that the applicant will attend, and that he will not delay the start of that trial: section 17(2) Bail Act. Because of the view I take on attendance some relaxation of the conditions set can be allowed. Applications based on these grounds may not always succeed however.

[19] In the result therefore I make the following order:

Upon his undertaking to return from overseas in time for and to attend his trial on 15 June 2004, the applicant Jope Naucabalavu Seniloli is granted variation of bail and interim relief. He is to have his passport released to him by the court forthwith to allow him to travel overseas for medical review. The applicant is to re-lodge his passport with the High Court upon his return to Fiji, no later than 8 June 2004.

Order accordingly.

A.H.C.T. GATES
JUDGE

Solicitors for the Applicant [Accused 1]: Messrs Mehboob Raza & Associates, Suva
Solicitors for the State : Office of the Director of Public Prosecutions, Suva