State v Matairavula [2004] FJHC 244; HAC0037D.2004S (14 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC00037 & HAM 064 OF 2004S

STATE

v.

PENI MATAIRAVULA
PENI TUKAI
PITA NAINOKA

Hearing: 10th September 2004
Ruling: 14th September 2004

Counsel: Ms K. Bavou for State
All Applicants in person

RULING

The 3 Applicants are jointly charged, with another accused, with robbery with violence on one count, attempted robbery on another, and one count of unlawful use of motor vehicle. The charges are dated 28th November 2003, but they were not charged until the 12th of March 2004. On the 20th of July 2004, they elected High Court trial and on the 13th of August 2004 they were transferred to the High Court for trial. They had made several applications for bail in the Magistrates’ Court but they were all refused.

The court record shows that only Sakiusa Basa appeared on every occasion in the Magistrates’ Court. The others appear to have taken turns to be absent resulting in several bench warrants being issued. The 3rd Accused, Sosiveta Raura is on bail and has been respecting his bail conditions. The 5th Accused Sakiusa Basa, has now been discharged in this case leaving 4 remaining accused persons. All accused persons have asked for speedy trial, and a trial date of 13th April 2005 has now been set before Gates J. When the trial commences, the Applicants will have been in custody for 9 months.

The grounds for the application are that the accused are locked in the same cell as convicted prisoners, that accused persons in treason-related cases were granted bail when those offences are more serious, that the remand facilities are unsatisfactory and over-crowded, that (for the 2nd Applicant) of family circumstances, and (for the 3rd Applicant) that remand has prevented the accused from instructing counsel.

The State objects to bail being granted and State counsel filed the affidavit of Detective Corporal Eremasi and the Commissioner of Prisons, Aisea Taoka.

The Commissioner’s affidavit states that each Applicant is remanded at the Remand Centre at Korovou Prison. The 1st Applicant has been in remand since the 7th of June 2004, the 2nd, since 30th July 2004 and the 3rd since 11th of March 2004 in relation to other matters. On the 6th of May 2004 the 3rd Applicant escaped from lawful custody and was captured on the same day. On the 27th of August 2004 the 1st and 3rd Applicant escaped from the cell block of the Government Buildings and were recaptured on the same day. Further, the affidavit states that all Applicants are kept separate from convicted prisoners, that there are three inmates in one cell, that they are provided showers twice a day and three meals a day.

Corporal Eremasi’s affidavit states that the 1st Applicant has two other criminal matters pending in the Magistrates’ Court, that the 1st Applicant has had 2 bench warrants issued for his arrest in the Magistrates’ Court and that he has 2 previous convictions for escaping from lawful custody, and 1 previous conviction for resisting arrest.

The 2nd Applicant has two other criminal matters pending against him in the Magistrates’ Court, that he has had bail denied in the High Court, that he has 4 previous convictions for escaping from lawful custody, and 1 for resisting arrest. The affidavit further states that the 3rd Applicant has two other criminal matters pending in the Magistrates’ Court, that on the 6th of May 2004 he escaped from lawful custody and that bail was denied on 15th July 2004 when he made an application in the High Court. Further, he is alleged to have re-offended whilst serving a suspended sentence.

In the light of this history, it is clearly not in the public interest to grant bail. Even if I were to overlook the seriousness of the offences charged, and the previous history of the Applicants, the 1st and 3rd Applicants have shown by their conduct in escaping from lawful custody, that they are unlikely to attend court when required. Further, the 2nd Applicant has a history of resisting arrest and escaping. Despite the inevitable wait for trial next year, I have no option other than to order their continued remand.

Finally, I am satisfied that the affidavit of Aisea Taoka, that the Applicants are not kept in the same cells as convicted prisoners. Indeed, the Applicants no longer pursue this ground.

For these reasons, bail is refused for all 3 Applicants.

Nazhat Shameem
JUDGE

At Suva
14th September 2004