Talemainiukini v State [2004] FJHC 239; HAM058D.2004S (31 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS ACTION NO. HAM058 OF 2004S

CLIFFORD TALEMAINIUKINI

V

THE STATE

Gates J.

Applicant in Person
Mr D. Toganivalu for the State

25, 27, 31 August 2004

RULING

Bail Act 2002; Bail pending trial in Magistrates Court; bail revoked without reasons recorded in writing s.20; appeal to High Court s.31 against revocation; administrative error leading to inadvertent revocation; need for full history on absconding to be placed before court s.19(2)(a)(ii) and s.19(2)(c)(i); accurate data not anecdotal.

[1] The applicant has appealed to the High Court having had his initial bail granted by the Magistrates Court, revoked. He applied to this court by informal letter from the remand prison. He appeared in person. Counsel for the State Mr Toganivalu has greatly assisted the court in trying to discover what had happened in the lower court, all of which is not clear from the record.

[2] The applicant was jointly charged with 3 others of unlawful use of a motor vehicle, robbery with violence, and abduction. The offences relate to incidents on 12 September 2002. The applicant was granted bail. All Accused elected trial in the Magistrates Court, and pleaded not guilty.

[3] From the record the applicant is marked as attending court regularly whilst on bail. On 28 July 2003 all 4 Accused were recorded as being present, represented by Ms Nair of Legal Aid Commission, but all were remanded till 11 August 2004. The reason for the apparent cancellation of bail for the applicant and the others is not stated.

[4] From his perusal of the police prosecutor’s docket Mr Toganivalu was able to inform the court that this error may have occurred because the Magistrates Court file was referred to the High Court and no duplicate file had been made meanwhile. That was unfortunate.

[5] The Accused has two other files, one in the Magistrates Court and one in the High Court. He is on bail in both of those matters. The prosecution have not applied to revoke his bail granted in those matters. His surety has attended court for each appearance in this application.

[6] Accused 1 had been committed for sentence to the High Court, but had escaped before sentence was pronounced.

[7] It is sometimes difficult for the prosecution to provide the court with a full picture when a person faces a series of offences arising from incidents alleged on different occasions. If provided with computers, court registries, police prosecutors, and counsel from the office of the Director of Public Prosecutions should be able to provide courts with more accurate data and information at short notice. This information can be brought before the court by way of affidavit, which the applicant may then have an opportunity of rebutting.

[8] But it is important for the High Court to be properly informed of the full picture. There is no public benefit in the High Court granting bail for an applicant on a robbery charge, if the court has not been informed that the same applicant is facing for instance a further six cases of robbery at petrol stations. Decisions and particularly appeal decisions on bail must be based on a complete picture. Similarly the prosecution authorities need to maintain a register of persons who have previously absconded whilst on bail, and be able to draw from it when opposing bail on that ground: Sections 19(2)(a)(ii) and 19(2)(c)(i) of the Bail Act 2002. Such an objection cannot be fairly maintained against an Accused person simply on the basis of anecdotal opinions current amongst prosecutors or court staff.

[9] Prosecuting counsel assures me that there appears to have been an administrative mistake here. The applicant had been attending court as required. The absence of the court file at the relevant time may have led to the apparent revocation.

[10] I allow his appeal. The applicant is granted bail in Magistrates Court Case No. 54/03 on the following conditions:

1. To secure your own attendance at the High Court by standing in your own recognizance in the sum of $500.
   
2. To provide 1 x surety, your mother, in the sum of $500.
   
3. To attend court when told to do so for mention, any pre-trial applications, and the trial of your case. You must check with DPO/S concerning your next Magistrates Court attendance.
   
4. To be of good behaviour and not to commit any offence whilst on bail.
   
5. To reside with your mother until the conclusion of your trial.
   
6. You are not to approach any prosecution witnesses, directly or indirectly, or to interfere with, or harass them, in any way.
   
7. You are warned that breach of any of these conditions is likely to result in the cancellation of your bail and the issuance, if necessary, of a warrant for your arrest and a return to custody till you are tried.
   

Bail granted accordingly.

A.H.C.T. GATES
JUDGE

Applicant in Person
Solicitors for the Respondent: Office of the Director of Public Prosecutions, Suva