Vakadewavosa v State [2006] FJHC 103; HAM 012.2006 (23 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 012 OF 2006

BETWEEN

ALIPATE VAKADEWAVOSA
Applicant

AND

STATE
Respondent

Counsel: Applicant - In Persona
Mr. D. Prasad - For State

Date of Hearing Ruling: 23^rd February, 2046

EXTEMPORE RULING ON BAIL

This is an extemporé judgment given at the conclusion of a bail hearing and as such I reserve the right to perfect the ruling once it has been transcribed for me.

Introduction

The accused/applicant faces charges with others of two counts of robbery, one count of unlawful taking of a motor vehicle, a count of resisting arrest and one of property damage.

It is alleged against him and his co-accused that they robbed a household and in the process discovered and used a 12 inch shot gun.

The incident was quickly reported to the police and there was hot pursuit. I am advised that the police surrounded the suspect vehicle containing tall of the perpetrators.

Three of the robbers made good their escape, two this accused/applicant and one other were apprehended and processed. This applicant has been held in custody ever since.

He made an application for bail in the Magistrates Court and this was refused. He has now re-app lied in the High Court.

This is the third call I have heard of this matter. On earlier calls I have made orders that the Magistrates Court file be prepared and produced for me, however, this has not happened. The next appearance in the Magistrate Court I am advised is tomorrow and so to give this applicant a purposive remedy I have to consider his application for bail afresh in the absence of the learned Magistrate's file and notes concerning his decision refusing the grant of bail.

I remind myself there is a rebuttable presumption in favour of bail enshrined in both the Constitution and the Bail Act.

The State are able to rebut that presumption if they satisfy me concerning the various matters detailed in Section 19 of the Bail Act 1002.

The prosecution case to my mind at this stage appears to be a strong one [Section 19(2) (a)(iv). If this applicant/accused is convicted it is likely that he would face a lengthy term of imprisonment as a weapon was said to be used in the course of the robbery and there were multiple offenders [Suction 19(2) (a)(v)].

It appears most of the applicant's adult life has been involved with lawlessness and various jail terms. The State confirms that the applicant has an extensive previous conviction list. This was given to the accused/applicant arid read by him and he accepted it as correct. Included in that conviction list are some 20 charges for robbery, some 18 previous offences for larcenies or burglaries and one charge of escaping custody.

Previous offences are normally a strong reason for the refusal of the grant of bail [Section 19(2) (a)(i)].

In addition there is evidence of previous failure to surrender to custody or at least I take that to be so by inference from the one previous offence of escaping from custody [Section 19(2) (a)(ii)].

It is true that the applicant has spent sometime in custody and prior to a decision in this case he is likely to spend a considerable time awaiting trial.

That would normally be a good reason to balance against any contentions the State may make including that because of the seriousness of the charge, his previous convictions and the strength of their case it is unlikely he will answer to his bail.

It is clear that time will be served in the AWB block at Suva Prison. Much has been said of the notoriously unsatisfactory conditions at that jail. However, of recent date (the 22nd of February, 2006) my sister justice Shameem had course to consider a multiple accused bail application. I have been given a copy of that decision in Criminal Case No.: HAC 010 of 2005S.

This was the second such ruling of bail that her honour had given in the matter. Earlier bails have been refused on the basis that the applicants were an escape risk and trial was about to commence.

Her honour said in that decision and I quote from page 2:

"He has now been shifted into the Awaiting Trial Block. The Officer-in-Charge of the Suva Prison gave evidence. He said that the Prison had now made fundamental changes to the regime of remand prisoners. They are now only locked to their cells for 7 hours a day. For the remaining hours they are free to take part in sports, other recreation and to have free time. They are allowed an unlimited number of visitors. A special room has been set aside for remand prisoners to prepare their cases. Their cells are cleaned daily."

I agree with the observations of my learned sister Justice that this indicates a great change from the conditions faced by remand prisoners in the Suva Prison a year ago. It is obvious that the conditions are not yet fully compliant with minimum international standards. There are apparently too few cells and too many prisoners on muster and the ablution facilities are not up to standard let alone the fact that the building itself has been declared a hazard. However, the apparent policy shift to treat remand prisoners in a completely different way from sentenced prisoners is a marked improvement. I any satisfied that the previous applications based on inhumane or degrading treatment would now be considered differently because of these changes.

The accused/applicant emphasised his prison conditions, emphasized the poor lack of facilities and his need to have access to a lawyer to prepare his defence. All of those matters I believe are answered by the derision of ivy sister justice.

As for the indictment and strength of the case I have reviewed the submissions given to me this morning by learned counsel for the Director of Public Prosecutions and I accept what he says from the bar table that the apprehension of these accused was immediate and as a result of hot pursuit after the robbery and accordingly the case against each of them Must for the purpose of this bail application be seen as a strong one. Accordingly, then for these reasons and in summary:

1. I find that they accused applicant is an extreme bad risk and is unlikely to answer to his bail.

2. The conditions at the awaiting trial block have improved.

3. The strength of the prosecution case

Are all appropriate reasons for the refusal of bail.

Accordingly I refuse the application. The accused is to continue to be remanded in custody until his next appearance before the learned Magistrate.

Gerard Winter
JUDGE

At Suva
23^rd February, 2006