Cakacaka v State1 [2004] FJHC 536; Ham0045. 2004s (2 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO. HAM045 OF 2004S

TAWAKA CAKACAKA

V

THE STATE

Gates J.

Applicant in Person
Mr N. Lajendra for the State

30 July, 2 August 2004

RULING

Bail pending trial; Bail Act [No. 26 of 2002]; application made after transfer to High Court; criteria for determination of bail s.18, 19; affidavit in opposition covering criteria; evidence indicative of guilt; likely penalty long term of imprisonment; length of time to be spent in custody; applicant critical of remand conditions, breach of right to freedom from cruel and inhumane treatment s.25 Constitution; referral to OHS service for independent report.

[1] The applicant applies for bail pending his trial at the High Court. He faces allegations concerning his conduct on 13 March 2004. He is charged with robbery with violence, attempted robbery, unlawful use of a motor vehicle, and larceny. He elected trial at the High Court.

[2] In the lower court the Magistrate refused him bail. He has been in custody now since 16 March 2004 when he was arrested. He says he needs bail in order to look for a surety, to consult the Human Rights Commission, and to look for a job so as to pay for a lawyer.

[3] In his letter of application he had also listed defects in the prison buildings, facilities, and system. This part of the letter appeared to have been written by someone else on behalf of the applicant. It was couched in colourful language and referred to his having "no right(s) in this doldrums of incarceration and isolation".

[4] Orally, the applicant did not address these issues, and dealt only with the matters recorded at para [2] above. The application was strongly opposed by the State, which had filed an affidavit. The affidavit properly dealt with the necessary criteria for the determination of a bail application as set out in sections 18 and 19 of the Bail Act [No. 26 of 2002].

[5] The State argues that the applicant is unlikely to surrender to custody, and is unlikely to appear in court to answer his charges [section 19 (1)(a)]. This is the primary consideration for the court to consider when deciding whether to grant bail [section 17(2)]. The evidence of relevant circumstances was provided in the Investigating Officer’s affidavit in opposition.

[6] No-one has come to court in support of the Accused or as a possible surety. He says he is married with children. A spouse would not be a suitable surety, since that person would lack independence, and by virtue of the emotional attachment to the applicant would be unlikely to ensure the attendance of the Accused at court. The Accused is currently unemployed and is not pursuing any further education or training. I do not have confirmation of his age, but he appears to be less than 30 years of age.

[7] There is no evidence as to where he might stay if granted bail or under whose good influence and firm control he might be.

[8] He has one previous conviction for robbery with violence when he was sentenced to 18 months imprisonment. That sentence was meted out on 14.2.03 which means he would have been out of prison only a few weeks before allegedly committing these offences. He has 6 previous convictions in all. The convictions are established facts, whilst the allegations he now faces are just that, allegations. But the allegations coming so soon after his release do not encourage faith that he will, if granted bail, not commit further offences whilst on bail [section 19(2)(c)(iii)].

[9] Though there is no evidence that he has failed to attend his trials before, he has two previous convictions for escaping from lawful custody. These particular convictions tend to undermine the confidence of the court also that he could be expected to abide by any terms and conditions of bail.

[10] The applicant undoubtedly faces serious charges. In outline they allege that he with others hired a taxi in Cunningham. They then robbed the driver, pushed him out of the taxi, and used the vehicle in the attempted robbery of a supermarket. They also robbed the Mobil petrol station at Tamavua. They stole a taxi meter and a car stereo.

[11] The State says the evidence is strongly indicative of guilt [section 19(2)(a)(iv)]. A number of witnesses have identified the applicant as one of those involved in the crimes. The State also relies on admissions made by the applicant, though the voluntariness of these admissions is challenged by the applicant.

[12] This is a case in which, if a conviction is entered, a long custodial sentence is inevitable. Likely penalty is one of the criteria to be taken into account in bail applications [section 19(2)(a)(v)].

[13] As for the interests of the Accused which are to be considered under the criteria listed in section 19(2)(b) of the Act, it is likely as the criminal list now appears, that the applicant if not granted bail will have to remain in custody for some time further. This is owing to the temporary reduction in the number of judges in the Criminal Division of the High Court available to hear trials. This position may improve. If not, it might also mean that in a case where bail has been refused at first, bail may have to be granted later on. That position has not been reached yet.

[14] The applicant criticizes the conditions in which he is held in custody, and says his right to freedom from cruel or degrading treatment [section 25 Constitution] has been breached. I shall refer his letter and a copy of this ruling to the Director of the National Occupational Health and Safety Service for him to make an independent assessment of these conditions and to report back to me. I seek that report by 3 September 2004 at 9.30 am when I shall list this application again.

[15] For the moment, bail is refused. On the evidence before me, I consider it unlikely the applicant will surrender to custody and to appear in court to answer charges, and I consider that there is a risk he may commit further offences whilst on bail. The applicant will be able to approach Legal Aid officers visiting the prison and seek advice, and I shall forward a copy of this ruling to the Director of the Legal Aid Commission so that she is aware of his situation. It will be a matter entirely for her and for her office to decide whether the Commission can take on the applicant’s case.

[16] The applicant is informed that he may apply for review of this decision or that he may appeal to the Court of Appeal, and if so he should do so immediately [sections 30, 31].

A.H.C.T. GATES
JUDGE

Solicitors for the Applicant: In Person
Solicitors for the State : Office of the Director of Public Prosecutions, Suva