Zhong v The State [2005] FJHC 43; HAM0003.2005 (1 March 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0003 OF 2005

BETWEEN:

JASON ZHONG
Applicant

AND:

STATE
Respondent

Counsel: Mr. M. Raza – for Applicant
Mr. P. Bulamainaivalu – for State
Mr. U. Ratuvili – for Human Rights Commission
Ms Rakuita – Attorney General

Date of Hearing & Ruling: 1st March, 2005

BAIL RULING

In previous decisions I have emphasized that successive applications for bail by the same accused must demonstrate some change in circumstances before the court is likely to re-consider the previous decision.

I accept the provisions of the Bail Act and Constitution concerning the rebuttable presumption for bail. I accept the burden of rebutting that presumption rests with the State. Nonetheless, having made a decision on a similar application in December of last year that was rejected, I am firmly of the view that to review such a decision requires the applicant to first point to a change in his or her circumstances.

In this matter learned senior counsel Mr. Raza primarily relies on trial delay as a changed circumstance. There is little disagreement between the State and Mr. Raza concerning the factual background to that delay.

This matter was to proceed to trial on the 1st of February of this year. The prosecution were unable to keep to that fixture as by the 17th of December it became obvious that their investigations particularly relating to the scientific analysis of the drugs in New Zealand could not be completed in sufficient time for that fixture to start.

Thereafter it is common ground that there have been further delays created by the DPP as they have had to rely on resources from New Zealand, not available in Fiji, to provide scientific analysis and other forensic assistance for the preparation of the trial. The State have done the best that it can to bring the matter on for hearing but they are reliant on these outside resources.

I accept that those delays occasioned by the State are in no way to be visited on this applicant. It is after all not his responsibility to prepare his case for trial. He carries no burden to prove anything. He has the presumption of innocence on his side.

I have now set the matter down for hearing in the week commencing the 2nd of May. At that time Mr. Zhong would have been in custody for something approaching 11 months.

Mr. Raza kindly provided the Court with a decision of Justice Pain dated the 24th of March 1997 under Misc. Application No. 006 of 1997, Singh vs The State, at page 4 of that decision his honour was considering a similar application on the basis of delay. He said and I quote:

“In the present case the total time in custody before the trial is to commence will be 16 months. That is an appreciable period. However, it is not a delay that is so inordinate that, in itself, it would automatically entitle an accused person to bail. On the basis of previous cases and having regard to the functioning of the law enforcement and justice systems in Fiji with their limited resources, some, and at times lengthy, delays can be expected.”

Despite that observation the learned Judge went on to grant bail on strict conditions. The accused in that case had little likelihood of interfering with prosecution witnesses nor apart from the alleged commission of that offence was there anything to suggest that he would present a danger to the public if granted bail. He was a young married man in a settled and stable situation with family support.

The question for me this afternoon is whether the delay of 11 months for this trial is sufficiently grave bearing in mind the functioning of the law enforcement and justice systems in Fiji with their limited resources to motivate me to consider that change in circumstances should entitle Mr. Zhong to bail. I am not so satisfied.

In my view, bearing in mind the seriousness of this offence and its particular circumstances involving allegations of significant illicit drug manufacture are such that I must balance the public interest about having this matter concluded against the personal interests of Mr. Zhong.

Mr. Zhong also in his affidavits raises with the Court again the conditions that remand prisoners are subjected to at the local Suva Prison. I am advised from the bar without the benefit of evidence that despite the Court’s warnings to the Prison Authorities prisoners are still being held in the old decrepit and unacceptable single cell facility at that prison. If Mr. Zhong is to renew his application and bring evidence to the Court that that is the case that may well bring about a change in the ruling I am about to make. I also indicated to Mr. Zhong that if his hearing does not proceed when scheduled because the prosecution are unable to do so then there would be a delay which, in terms of the maximum available penalty for this sort of offending, might be sufficient to motivate the Court to grant bail.

Conclusion

For the reasons expressed in this judgment I am going to refuse the application. Mr. Zhong, I don’t consider that a delay of 11 months before your trial is an inordinate one. I do consider that it may be significant you are being held against the High Court’s direction in the single remand facility at the Suva Prison. However, I am unable to act on that matter as I don’t have evidence before me. If I was to have evidence before me I would re-consider the ruling I have now given. The application is dismissed.

Gerard Winter
JUDGE

At Suva
1st March, 2005