Buksh v The State [2006] FJHC 19; HAM0002D.2006S (20 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0002 of 2006S
Crim. Case No: HAC0010 of 2005

Between:

SHAKIR BUKSH
JITOKO METUI
TEVITA KOTOIRAKIRAKI
Applicants

And:

THE STATE
Respondent

Hearing: 19^th January 2006
Ruling: 20^th January 2006

Counsel: Shakir Buksh in Person
Mr. G. O’Driscoll for 2^nd Accused
Tevita Kotoirakiraki in Person
Mr. P. Bulamainaivalu for State

BAIL RULING

The 2^nd and 4^th Accused apply for bail pending trial. They are charged, with two others, with murder. Their trial has been delayed over the past year, principally due to difficulties in representation. It is now due to commence on the 20^th of February 2006. The 2^nd Accused is represented by counsel. The 4^th Accused has been given time to instruct counsel. The court’s own attempts to obtain representation for the 1^st and 4^th Accused pro bono esse, have been unsuccessful. The Accused have now been held in remand for one year.

The 2^nd and 4^th Accused’s grounds for applying for bail are identical. They are based on the conditions of their custody, and alleged multiple breaches of section 25 of the Constitution. In particular the Applicants point to the overcrowded and smelly cells, the “lock-up” for 23 hours in the day, the leaking and deteriorating roof, the inadequate shower facility with a total lack of privacy, the prevalence of skin diseases and the inadequate facilities to prepare for their defence.

The State opposes bail, but in the light of the evidence of the Officer-in-Charge of the Korovou Prison, who was called as a witness, was unable to mount much of a challenge to the applications for bail.

The evidence of Superintendent Eliki Satakala was that he had only just been appointed the Officer-in-Charge, on the 9^th of January 2006. He said that the two Applicants shared a cell with three other prisoners, that they used bucket latrines which were emptied at 10am every day, that they had no personal access to telephones, that they were locked up for 23 hours a day with no planned recreation or exercise, that one tap for 50 remand inmates was inadequate, that there was no privacy for bathing, that no disinfectant was provided, and that there were no plans within the Prisons Department to improve prison conditions for remand prisoners.

The Human Rights Commission found, in respect of identical conditions in State v. Tawake Cakacaka HAM0045 of 2004, that the conditions were inhumane and degrading. I and my brothers Gates J and Winter J, have accepted those findings in a number of judgments delivered by the Suva High Court.

I see no reason to differ in this case. Not only are the conditions of custody of the 2^nd and 4^th Accused inhumane and degrading, but I find that they positively hamper the Applicants’ ability to prepare for trial. The 2^nd Accused is unable to make a personal telephone call to his counsel. The 4^th Accused has been forced to use the telephone in the High Court Registry to contact lawyers and relatives.

In the circumstances, I have no option but to grant bail. If it were not for the prison conditions, I would refuse bail. Bail must be granted on conditions I will now proceed to set.

Finally, I consider that the Officer-in-Charge, who gave candid evidence about the prison conditions, is making real efforts to improve the lot of remand prisoners. However, he is constrained by the archaic building and lack of resources allocated. The Ministry of Justice officials, and the Prisons Department would do well to consult him on future plans for remand prisoners.

Nazhat Shameem
JUDGE

At Suva
20^th January 2006