Vuetaki v State [2006] FJHC 100; HAM010.2006S (20 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Miscell. HAM010.06S

TUPOU VUETAKI

v

THE STATE

Gates J

Fiji High Court, Suva
7^th, 16^th, 20^th February 2006

RULING

Bail pending trial in the Magistrates Court; strength of prosecution case weak section 19(2)(a)(iv) Bail Act 2002; remand block, previously condemned, still used; conditions of custody, relevance of, section 19(2)(h)(ii); identification weak, tilting balance towards grant of bail; strict terms with curfew.

The Applicant in Person
Ms Puamau for the Respondent

[1] The applicant applies to the High Court for bail pending trial in the Magistrates Court. On the last appearance before the Magistrate the file was missing. The applicant says he was asked to put up $5,000 cash bail. Unfortunately there is no confirmation of this or as to what exactly happened in the lower court. The State confirms the file is missing.

[2] The applicant was originally charged on his own. Now he is charged with another. He denies any involvement in two robberies at Navua. He admits he has a bad record but says lie does not do robberies.

[3] His record is not a good one. It extends back to 1985. The last two entries he says are incorrect. Cryptically the police criminal record says the sentence for robbery case CF.865.01 was "Spent 20 weeks in custody enough punishment"? In the time available, this could not be checked. I will ignore it, so far as this application is concerned.

[4] The applicant launched his application in a detailed 7 page letter to the court. The two main arguments he raises are the degrading; conditions of the Awaiting Trial Block at Korovou, Suva Prison and the weakness of the prosecution case against him.

[51 Ms Puamau concedes there is no identification of the applicant at the scene of the two robberies in Navua. There was no identification parade. The only link is that it is said the applicant was the passenger that climbed out through the front passenger window of the pajero vehicle that had crashed into a driveway in Suva. The robberies occurred in the early hours of 19^th November 2045 and the applicant v, as seen emerging from the pajero at 6.39pm the same day, some 16 hours later.

[6] From the Bar table Ms Puamau informs me that there were civilian witnesses who can testify to the arrest incident. The existence, parameters and extent of this evidence were not contained in the State s affidavit. The applicant made no admissions and now vehemently asserts his innocence of the robbery charges.

[7] It is conceded also that the officer who reached the vehicle and saw the person emerge from the passenger side described him as "a fat Fijian man". The applicant is tall and thin. He could not be described as fat. "The fat man" ran off inside a driveway. Contact appears to have been lost for a while with that person before the applicant was arrested. The applicant will raise alibi for the robberies alleged to have occurred on the previous night, in the early hours at 2.20 am.

[8] On a summary of the identification evidence in his case made to me, it is apparent the link between the robberies in Navua at 2.20 am and the applicant in Suva as a passenger in the stolen vehicle at 6.40 pm is very thin. First the prosecution must be able to convince a court that the man emerging from the front passenger window was indeed the applicant. If the prosecution fail at this fence, the whole case against the applicant collapses.

[9] There were other discrepancies in the charges which will no doubt be attended to prior to trial.

[10] The applicant refers to the inhumane conditions continuing at the Awaiting Trial Block. He says there have been no changes. He points to the poor flow of water, the dirtiness of that water, the lack of hygiene, lack of soap, the use of toilet bucket by the 3 inmates, insanitary eating arrangements, and meals squeezed into a short regime 8 am, 10am, and 2.30pm.

[11] Other judgments of the High Court have dealt with the increasing danger of incarcerating remand prisoners in a building which has a long history of being condemned as unsafe by virtue of the corrosion of its iron and concrete structure: Senijieli Boila and Pita Nainoka HAC032.04S; State v Leone Vakarusaqoli & 2 Others HAC023.04S; Peceli Vuniwa v The State HAM050.05S 17^th August 2005; Tawake Cakacaka v The State HAM045.04S 2^nd December 2004; Noa Yasa & Ano. v The State HAM063A.05S 18^th November 2005. The Fiji Human Rights Commission has produced several reports detailing the specific circumstances of non-compliance with intentional indicators and minimum standards of imprisonment.

[12] The strength of the prosecution case [section 19(2)(a)(iv) Bail Act 2002] and the conditions of custody [section 19(2)(b)(ii) are factors which the court must relevantly take into account in deciding whether to grant bail.

[13] the State may or ,ay not succeed in proving that the applicant was involved in the matters charged. AS so far demonstrated the identification evidence appears thin, not to say, very thin. In these circumstances, coupled with the appalling conditions which a remand prisoner has to endure at the Suva Prison AWB, the balance tilts in favour of an award of bail.

[14] The applicant will be granted bail on strict High Court terms and in particular

(a) on his own recognisance of $500;

(b) with one surety of $500;

(c) to report to Nasinu Police Station Mondays and Fridays between 6am-6pm;

(d) to remain at home curfewed daily between the hours of 7.30pm and 5.30am.

A. H. C. T. GATES
JUDGE

The Applicant in Person
Solicitors For the State: Officer of the Director of Public Prosecution, Suva.