State v Lewaqai [2005] FJHC 715; HAC044.2004 (11 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC044 OF 2004

THE STATE

V

ERONI LEWAQAI

Gates J

Applicant in Person
Ms A. Prasad for the State

11 January, 2005

RULING

Bail Act 2002; arrest without warrant section 25(2)(b); breach of reporting conditions; second default; monitoring of bail conditions by police; options for court following breach; no penalty unless charged and convicted of bail offence; forfeiture of bond; variation of terms and ordering of surety to secure compliance.

[1] The issue in this matter is whether the Accused’s admitted default, a second default, in complying with reporting conditions, should result in remand or at least some remand hereafter, or whether bail should be extended but with a tightening of conditions.

[2] Eroni Lewaqai is Accused 5 in a High Court information charging him with a single count [count 5] of taking an engagement in the nature of an oath to commit a capital offence, contrary to section 5(b) of the Public Order Act Cap 20, read with section 50 of the Penal Code Cap 17. The maximum sentence for such an offence is life imprisonment. Undoubtedly this is a serious charge.

[3] Bail was set in the Magistrates Court Suva on 2 December 2004 when the case was transferred, on the State’s application, to the High Court. The Accused’s bail terms included a condition that he report to the Sabeto Police Station every Sunday between the hours of 6 am-6 pm. The Accused gives his address as Sabeto Village, Nadi. The village is not far from the reporting police station.

[4] Only 3 days after being released on bail, this Accused failed to report. He was arrested. He said he was ill. The court found his explanation satisfactory and that the default had not been intentional. When he was brought back before the court on 7 December 2004 bail was therefore extended.

[5] However he failed to report again. This time on 9 January 2005. He was arrested by the police without warrant as permitted by section 25(2) (b) of the Bail Act 2002, since he had broken a condition of bail.

[6] Today in court the Accused says he deeply regrets his failure to report. He says again he had no intention not to report. He is a lay preacher and was organizing church services for the circuit, and arranging accommodation for visitors from overseas and locally. He also had relatives visiting and other provincial obligations. He said his mind was carried away with these activities with no time to think. Eventually his wife reminded him. Meanwhile an officer came to arrest him.

[7] The applicant says he understands the breach of conditions is a serious matter, and seeks another chance. His wife and he stay alone. He looks after his wife who is a diabetic and who has already had a leg amputated. He has six children two of whom are still studying, one at university and one at school. He is financially pressed trying to find funds for their education. He undertakes full compliance hereafter.

[8] First, the police are to be commended for taking the tiresome business of monitoring bail reporting seriously. If bail is to be granted in most of the cases pending trial, it is crucial to the justice system that such bail be not abused. A station officer or suitably delegated officer needs to carry out this function. The function was carried out in this case, and twice the defaults were brought to the attention of the court. The officer responsible deserves commendation for his efficiency and his monitoring work needs to be imitated by police stations throughout Fiji.

[9] The applicant acknowledges his default. He seeks further lenient treatment and the extension of bail. The State not surprisingly seeks some remedy that will ensure compliance hereafter. Ms Prasad submits the court could remand the applicant for a short period before reviewing bail at a later date.

[10] Any refusal of bail or any stricter conditions to be imposed could not be used as a penalty. The State could however charge a defaulter who fails without reasonable cause to surrender to custody [section 26(1)] and it is then for the person charged to prove that he or she had reasonable cause for failing to do so. Such offences carry on conviction a maximum fine of $2,000 and 12 months imprisonment. Refusal of bail for a while could be resorted to until such time as the court was prepared to invest confidence in an applicant that he or she would submit to custody and would comply with all terms and conditions of bail if granted.

[11] In this case, the applicant has failed to keep at the forefront of his mind that the conditions of reporting, indeed the conditions of bail must remain priorities in his life if he is to remain on bail. This was particularly so after he had had an unfortunate arrest and been brought down to Suva once before. None of this kind of experience could have been pleasant for him or his family.

[12] I do not propose to cancel bail or to order forfeiture of part of his $2,000 bond. However I regard the breach as serious, unnecessary, and also expensive for the State. I therefore order as follows:

1. Bail is to be continued as before but with variations.
   
2. Reporting will continue as before between the same hours, varied so that reporting is made on Mondays, not Sundays.
   
3. The applicant is to be released after providing a surety to secure compliance with all terms of bail, such a surety to be suitable to the State and in the sum of $2,000.
   
4. The applicant is reminded that any future default in compliance may result in his bail being cancelled, in his having to await trial in custody, and to endure his trial whilst still in custody.
   

Orders accordingly.

[13] You have a right to seek review of this decision through the Court of Appeal, and if you wish to do so, you should apply immediately. Your counsel who could not be here today will advise you further.

A.H.C.T. GATES
JUDGE

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