Tarovi v State [2004] FJHC 221; HAM0044J.2004S (6 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAM044 OF 2004S

NAIBUKA TAROVI

V

THE STATE

Gates J.

Mr N. Vere for the Applicant
Mr W. Kurisaqila for the State

5 and 6 July 2004

JUDGMENT

Bail application pending trial; appeal against Magistrates revocation of police bail, sections 30(3), 31(1) Bail Act [No. 26 of 2002]; dangerous driving s.98(1), 114 Land Transport Act [No. 35 of 1998]; importance of applicant himself deposing on issues material to application; material to be presented in opposition s.19(2)(a)(iii), (iv), (v) Bail Act, likelihood of surrendering to custody and appearing in court, s.19(1)(a), s.19(2); affidavit lacking in material evidence; decision to revoke bail upon being brought to court on a bench warrant s.25(3); long standing default of attendance; necessity for written reasons when refusing bail s.20(1) & (2); reasons to be conveyed to applicant; applicant to be informed of procedure for review of bail s.20(3), s.30; principal and determinative consideration the likelihood of surrendering.

[1] The applicant appeals the decision of the Resident Magistrate made on 29 June 2004 revoking bail previously granted to him by the police to attend the first call of his case in the Magistrates Court.

[2] He is charged with dangerous driving contrary to sections 98(1) and 114 of the Land Transport Act [No. 35 of 1998]. The allegation relates to driving on 4 October 2002.

[3] On 30 June 2004 solicitors filed papers on his behalf at the High Court. A notice of motion was filed, which was in effect an appeal against the Magistrate’s decision as provided for by sections 30(3) and 31(1) of the Bail Act [No. 26 of 2002]. The applicant seeks the setting aside of the remand order made by the Magistrate and its replacement with a grant of bail.

[4] Initially, the motion was supported by the affidavit of Wati Miri, the applicant’s wife. However the applicant himself was asked by the court to file his own affidavit. This was essential so that the reason for his non-attendance, if not covered in the court record, and for other issues material to this application, could be considered at the hearing of this application.

[5] The papers were to be served on the Director of Public Prosecutions with the fresh affidavit by 2 July 2004. Affidavits in opposition, if required, were to be filed by 12 noon on 5 July 2004 and the hearing was set for 2.30 pm, the same day. The Director for the State did not wish to file any affidavits.

[6] The applicant is presently remanded by the Magistrate till 13 July 2004. The charge which the applicant faces carries a maximum sentence for a first offence of a fine of $1,000, 12 months imprisonment, and disqualification from driving for 6 months. For a second offence he is liable upon conviction to a fine of $2,000, 2 years imprisonment and disqualification for 12 months. The 1998 Act, which repealed the Traffic Act, has increased substantially the penalties for dangerous driving. Parliament can be taken to have viewed such an offence more seriously than before. It would be an inaccurate label therefore to refer to the present charge as a mere traffic offence. But in some matters in which the prosecution objects to bail, it would be helpful if the court were presented with a brief account of the allegation, or a witness’s statement which would show the nature and gravity of the charge. This would assist the court in deciding whether or not bail were to be refused by virtue of section 19(2)(a)(iii), (iv) and (v) of the Bail Act. Confirmation from the State as to the applicant’s previous criminal history and of any previous failure to surrender to custody or to observe bail conditions are also essential to the process [section 19(2) (a)(i) and (ii)].

[7] In his affidavit the applicant says:

"That I was charged by the Valelevu Police for Dangerous Driving and was supposed to appear at the Suva Magistrate’s Court sometimes in August 2003.

That I did not appear in court on the day my case was called because I was at the time working in Vanua Levu under the building rehabilitation program of the Fiji Government.

I knew that the police would ring my wife or me when I should next appear in court."

[8] The applicant is a Sergeant in the Republic of Fiji Military Forces Engineering Division, working in the Transport Plant Pool Platoon.

[9] Not surprisingly when the case was first called and the court saw that the applicant had not answered his police bail, the Magistrate issued a bench warrant for his arrest. This was a correct procedure and unremarkable.

[10] The applicant does not explain in his affidavit what he did in the ensuing months in order to present himself at court, he knowing he had not honoured his bail to attend court. From the court record it appears he was first due in court on 25 March 2003 (not August as the applicant has deposed). Only on the fourth mention did the court issue a bench warrant.

[11] The applicant says that he eventually returned from Vanua Levu. He omits to say when he returned. Indeed he had not deposed as to when he was first deployed to Vanua Levu. Both were material pieces of information. He says he then learnt from his wife of a visit from the police and of the existence of a bench warrant. But he let a further 6 months pass once back on Viti Levu before he went to the police to give himself up or to discuss what the position was with his case.

[12] On 28 June 2004 he managed to contact WPC Sokoveti at Valelevu Police Station. She asked him to accompany her to court, which he did. He went before the Magistrate and he said:

"I gave my explanation and before I finished my explanation, the magistrate cut me short and ordered that I be remanded in custody for the next 14 days."

[13] The applicant as a military man will well understand the importance of soldiers under his command obeying his orders. Court orders are no less important. Orders to attend court are to be obeyed. They are not optional. Failure to attend court wastes the time of the police and court staff, and clogs up the list. Obtaining his attendance after default costs the tax payer unnecessary money.

[14] Once a person is bailed by police to attend court, he or she should make careful note of the date, and ensure that they attend on the due date and at the correct time. There should be no need for a bench warrant to be issued, and for an Accused to have to be searched for by police and to be brought to court. In this case the applicant did not appear to bother about the date of his case nor did he explain what he did with the police bail document when he was bailed for court. His superior officers should have been notified of his need to attend court and of the date. Undoubtedly they would have permitted him leave to do so from Vanua Levu, even if attendance were to be at his own expense.

[15] The applicant failed to note the date. But he could still have telephoned Valelevu Police Station to inquire about his court date. He did not do so. Being in Vanua Levu on useful military work is not a reason for failing to attend court. Nor is it the duty of the police to ring an Accused, he having failed to attend court, informing him of the adjournment date. The police do not have the time and resources to provide that kind of service.

[16] The applicant is recorded as explaining to the Magistrate that:

- "I did not know the procedure.

- I went away without asking anyone."

[17] Having heard this explanation it is hardly surprising that a Magistrate, whether or not dealing with a lengthy traffic list, would not want to hear anything further. It is unlikely this explanation would carry much weight in military circles either. Since the Magistrate’s decision is a refusal of bail, written reasons should have been given [section 20(1) and (2)]. In a busy court these may be confined to bullet points in the record, and the Accused informed in summary form, and this fact noted. It would be as well to have s.19 available on the bench to enable this to be done, and section 20(3) referred to in the record that the Accused has been informed of the procedure for review of bail to the High Court.

[18] In conclusion, I can find nothing requiring any review by the High Court, of the decision of the Magistrate to revoke bail in pursuance of section 25(3) of the Bail Act. The principal issue in determining bail is the likelihood of the Accused person surrendering to custody and appearing in court for his or her case. The applicant has failed to show that the Magistrate’s decision was incorrect or that he, the applicant, can be trusted in view of the circumstances of his not attending and of his continuing not to attend. Nonetheless Mr Vere acting professionally and properly, has tried his best for his client to obtain bail of the court.

[19] It may be that the applicant will be able to convince the Magistrate on the next mention of the case on 13 July 2004 that he has learnt his lesson and that he will indeed keep within the terms of any bail if then granted. That will be for the Magistrate to decide. At this stage I can find nothing unlawful in her decision, and no material has been brought to my attention which can be categorized as either fresh or compelling to overturn that decision. The applicant has so far shown himself to be untrustworthy.

[20] The appeal is dismissed and the revocation of bail is confirmed. The applicant is informed pursuant to section 20(3) of the Bail Act of his right to apply to the Court of Appeal for review of this refusal of bail. His counsel can advise him further.

A.H.C.T. GATES
JUDGE

Solicitors for the Applicant: Naipote Vere Esquire, Suva
Solicitors for the State : Office of the Director of Public Prosecutions, Suva