State v Rawaqa [2005] FJHC 104; HAC0042Y.2004S (5 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0042 of 2004S

STATE

v.

MAIKELI RAWAQA

Hearing: 28th April 2005
Ruling: 5th May 2005

Counsel: Ms P. Madanavosa for State
Accused in Person

BAIL RULING

This is not the Applicant’s first bail application. He made an application on the 18th of February 2005, which I refused on the ground that he was likely to interfere with witnesses (his wife and father). He made another application on the 1st of April 2005, which I refused on the 6th of April on the grounds that the prosecution had a strong prima facie case, and that the Applicant was discussing his case with his wife. He is charged with robbery with violence and unlawful use of motor vehicle.

He now makes this application on the new ground that his conditions of custody are inhumane and degrading, and in breach of section 25 of the Constitution. He said that he had been confined in a cell in the Main Cell Block of the Korovou Prison since the 1st of April, with two other inmates. In the light of my bail ruling in State v. Senijieli Boila and Pita Nainoka Crim. Case HAC0032 of 2004S, I asked the State to clarify and confirm his claims.

On the 28th of April 2005, the Officer in Charge of the Korovou Prison, ASP Cagidaveta, gave sworn evidence. He confirmed that the Applicant had been removed from the Sacau Dormitory, to a cell in the Main Cell Block. He now shares the cell with two other remand prisoners. The Assistant Superintendent, whom I consider to be a conscientious and dedicated prison manager, working in the most difficult conditions, said candidly that the Sacau Dormitory could only accommodate 52 remand prisoners. They now had a number far in excess of that, and had no choice but to place prisoners in the condemned cells in the Main Cell Block.

In State v. Eugene Tuni Michael Lapeter HAC0019 of 2004S, I said that the approach to section 19(2)(b) of the Bail Act should be in two steps. Firstly, the court should consider the conditions of custody together with all other relevant factors under the Bail Act. If the State has not shown to the court why bail should be refused, after this balancing exercise, bail should be granted.

If the court considers that bail should be refused however, it should go on to consider whether the conditions of custody are inhumane and degrading under the Constitution. If they are in breach of the Constitution, bail must be granted regardless of the other factors (such as public interest) under the Bail Act.

In State v. Senijieli Boila and Pita Nainoka HAC0032 of 2004S, I considered the conditions of the cells in the Awaiting Cell Block and the Main Cell Block at the Korovou Prison. The conditions of all the cells examined have been found to be inhumane and degrading by Winter J, Gates J and I in several judgments. We considered that the conditions of custody was such that they “impinged upon the inherent dignity of the individual” (Madraiwiwi J in Taito Rarasea v. The State [2000] 2 FLR). They were in breach of the United Nations Minimum Standard Rules for the Treatment of Prisoners. In particular, the long hours of detention in a small cell with two other men, the lack of exercise, the use of the bucket latrine, the insects in the bedding, the skin diseases on the inmates and the damp washing hanging in the cell, over the equally damp mattresses, persuaded all three criminal judges that there was a breach of section 25(1) of the Constitution.

The State has not suggested that these conditions have in any way improved, or that the Applicant is in better accommodation. Clearly, he has shown a strong case of a section 25 breach.

Although I have concerns that he will interfere with witnesses, and although his trial is now only a month and a half away, I have no option but to grant bail.

Section 25 of the Constitution creates an absolute, non-derogable right. Once a breach is proved, there can be no justification for further remand.

For these reasons, I grant bail on strict conditions. They are:

1. The Applicant must not live with his wife or his father nor speak to them directly or indirectly until the trial is over;
   
2. The Applicant must not return to his village but must live in another village, the details of which he must give to the court clerk before he is released.
   
3. He must report on Mondays, Wednesdays and Fridays between 6am and 6pm at the Nausori Police Station until his trial commences.
   
4. He must attend court on the 20th of June 2005 at 9.30am for his trial.
   

Nazhat Shameem
JUDGE

At Suva
5th May 2005