Pillay v State [2006] FJHC 110; HAM006.2006S (20 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case HAM006.06S

JOHN PILLAY

v

THE STATE

Fiji High Court, Suva

26^th January, 3^rd, 9^th, 20^th February 2006

Gates J

RULING

Bail pending trial in the Magistrates Court; money laundering and related charges; 3 months already in custody, likely another 3 months till decision; strong prosecution case; Co-Accused pleaded guilty sentenced to 5 years imprisonment; $80,000 unrecovered; this applicant had no prior convictions; assaulted in remand centre suffered fractured right arm necessitating plaster cast; inadequate explanation from Prison authorities; late investigation and no special rearrangements of accommodation to avoid repetition; whether safe to leave in Prison care.

Applicant in Person
Ms Puamau for the Respondent

[11 The applicant has been remanded in custody since 31^st October 2005. He was jointly charged in the Suva Magistrates Court with another person on 5 counts, 2 of forgery, one of obtaining registration by false pretences, and one each of obtaining money and money laundering contrary to section 69(3) of the Proceeds of Crime Act 1997.

[2] The applicant pleaded not guilty ore 16"' December 2005. The trial is yet to be fixed. His Co-Accused pleaded guilty to all charges and received terms of imprisonment, the greatest term being one of 5 years imprisonment on the money laundering count.

[3] The application was made through a composite letter issued from prison. It points to prison conditions, there being no facilities to prepare a defence, lack of access to a solicitor, and that the Magistrate had not heard him on the question of bail or considered his arguments.

[4] On the first mention, counsel had only had delivery of the papers to her the day before. The case number was eventually located and affidavits in opposition ordered far the next hearing on 3rd February 2006. On that day the applicant told the court he had been assaulted in prison and had a painful and swollen arm. He said he had not been granted access to senior officers at the prison.

[51 Ms Puamau said the applicant was a flight risk. F$1,400 had been frozen in the bank and F$80,000 remained unrecovered. The applicant said he had not been in trouble before. This was to be checked as it had not formed part of the confirmatory material in the State's affidavits.

[6] On 9^th February 2046 the court asked for further information to be placed before it. Those matters were:

1. How he came by his broken arm.

2. What treatment he has received, exhibit copy treatment card and give details of hospital and review visits.

3. What housing arrangements have been made in view of the assault?

4. Evidence of Applicant's previous history of offending (if any).

5. Strength of prosecutor evidence against Accused.

6. What sentence was given to Co-Accused?

7. What case preparation facilities given to this prisoner?

[7] This morning Ms Puamau reported that the DPP had not received the information it required from Prisons. She informed me the Prisons were still investigating the assault on the applicant. The assault tools place on 27^th December 2005. By now the Prisons authorities would have had enough time to get to the bottom of what lead occurred and be in a position to provide the DPP's officers with the exhibits as required for their affidavit.

[8] The case against the Applicant is that he stood in the shoes of his nephew and procured a certificate of registration far a company known as Asia Pacific Finance, He vent on to open batik accounts using his nephew's identity falsely, and various persons in Australia responded to newspaper advertisements, and remitted funds to the account opened in his nephew's name. The nephew is a prosecution witness.

[9] The prosecution case at this stage, appears to be a strong one [section 19(2)(a)(iv) Bail Act 2402]. If convicted, it is likely that he would face a ter7n of imprisonment [section 19(2)(a)(v)]. I have no information on the applicant's background, though he tells me he would reside with his wife at Nadera. The State confirms the applicant has not previously offended, normally a strong reason for the grant of bail [section 19(2)(a)(i)].

[10] There is no evidence of his previous failure to surrender to custody [section 19(2)(a)(11)]. The allegations are however serious, involving systematic fraud.

[11] He has already spent over 3 months in custody, and prior to a decision in his case is likely to spend perhaps a similar time yet. Such time is to be spent in the unsatisfactory conditions existing at the AWB at Suva Prison.

[121 The initial affidavit filed by the State was inadequate to address the necessary issues in this application.

[13] The Chief Administrative Officer of the Suva Prison. Mr Vatuwaliwali later deposed that he had noticed the applicant had been walking around some time with a cast on his right arm. He did not say when he first saw this unusual sight, surely of some concern in a remand facility. Only when Ms Tabete from the DPP's office went to the prison on 9^th February 2006 did the Chief Administrative Officer inquire from an inmate how the injury had occurred. Earlier in his affidavit Mr Vatuwaliwali said "the applicant is a prisoner under my care and supervision. "Why did it take so long to make inquiries as to how a prisoner in his care suffered a fractured right arm?

[14] A satisfactory explanation as to how a person without conviction in the care and supervision of the remand prison came by such a serious injure, is not forthcoming. No evidence has been placed before the court, as requested, o£ the treatment given and of review visits to hospital. Nor have special arrangements been made to see no such assault re-occurs.

[15] The applicant is not someone to whom I would normally have extended bail. However J am not satisfied that his safety can be guaranteed in the AWB. As such I have no option but to grant bail on terms to secure his attendance at court.

[16] He will be granted bail on the usual High Court terms as follows:

(a) On his own recognizance of $1,000.

(b) With one surety of $1,000.

(c) To reside at the named address in Nadera.

(d) He is not to approach any of the prosecution witnesses either directly or indirectly.

(e) To report to Valelevu Police Station every Monday and Friday between 6am-6 pm.

A.H.C.T. GATES
JUDGE

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