Saqasaqa v The State [2006] FJHC 35; HAM0005D.2006S (31 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Action HAM005.2006S

ILIASERI SAQASAQA

V

THE STATE

Fiji High Court, Suva
30th, 31st January 2006
Gates J

RULING

Application to High Court for variation of bail pending trial granted initially in the Magistrates Court; informal application by letter; by unrepresented remand prisoner; whether cash bail set too high; whether released on reasonable terms and conditions; section 27(3)(c) Constitution; bail must not be fixed excessively; section 3(1) and (3) Bail Act 2002; necessity for the provision of assistance to the court by State institutions.

Applicant in Person
Ms Madanavosa for the Respondent [the State]

[1] The applicant awaits two trials in the Magistrates Court. He was granted bail in both matters by the Resident Magistrate. In one matter he faces a charge of being in possession of dangerous drugs, namely 12.3 grams of marijuana. In the other, he is charged with robbery with violence.

[2] In each matter, separately, the Magistrate fixed bail in the applicant’s own recognizance of $1,000, to be lodged with the court as a cash bond. This meant the applicant had to find cash bail in total of $2,000.

[3] In his informal letter applying for variation of bail, the applicant states he is a farmer and part-time taxi and mini bus driver. He is the father of eight children. His wife does not work.

[4] The issue therefore is whether in setting cash bail for these amounts, bail has been set too high. By virtue of section 27(3)(c) of the Constitution every person who is arrested for a suspected offence has the right:

“(c) to be released from detention on reasonable terms and conditions pending trial, unless the interests of justice otherwise require.”

[5] Bail conditions, imposing as they must restrictions on persons awaiting trial, must therefore be reasonable and commensurate with the gravity of the offence and with the individual risks identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an opportunity to take up the grant of bail. This has been a principle of great antiquity in the common law.

[6] In the Fiji context, and without evidence of means recorded, I cannot be sure this applicant is in a position to raise $2,000 cash.

[7] Bail will be varied to include the usual High Court terms in each case. In addition the applicant is to report twice a week to his nearest police station between 6 am and 6 pm on Mondays and Fridays. Bail is to be reduced to $500 in his own recognizance with one surety of $500.

[8] Before leaving this matter, I wish to mention one procedural matter. There is effectively a right to bail enshrined in the Constitution, as also in the Bail Act 2002 [section 3(1) and (3)] unless it is not in the interests of justice that bail be granted. There is also a presumption in favour of a grant. Within reason, the burden is probably the same in any application for variation.

[9] This means that whilst granting access to the court to those handicapped by lack of representation and thus by lack of knowledge and skills, a court may have to expect more from the State in the presentation of evidence, material, and legal citation or assistance. If an applicant must mount his challenge whilst incarcerated within prison walls, he is even more handicapped, and hence a greater burden falls upon the various arms of the State, the Police, the Prisons, and the office of the Director of Public Prosecutions to assist the court.

[10] In such cases much of the information will not be presented to the court by the applicant, and therefore the necessary confirmatory or clarificatory information must be provided by the State, albeit that it may be opposing the application. In this application, the court had to manage without such assistance.

[11] Some of the difficulties encountered presently may be overcome by the introduction of a form to be completed by prisoners who seek either bail or a variation of it. I understand this is presently being worked on by the Director of Public Prosecutions. Once this is in use, much of the information omitted by applicants in their informal letters from the Prisons will become available for checking. The State’s officers may then be able to respond more swiftly to applications, and in appropriate cases, to make concessions based on facts which have been checked and which the court, having regard to the public’s interest, can safely rely on.

A.H.C.T. GATES
JUDGE

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