State v Yavala [2006] FJHC 9; HAC0057D.2005 (5 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC0057 of 2005S

STATE

v.

TUKAI YAVALA

Hearing: 4th January 2006
Ruling: 5th January 2006

Counsel: Ms K. Bavou for State
Applicant in Person

RULING ON BAIL

The Applicant applies for bail pending trial. He is charged with robbery with violence and his case was transferred to the High Court on the 22^nd of November 2005. He has been in custody since the 29^th of September 2005. He made numerous bail applications in the lower court, but they were refused on the grounds that the offence was serious, the property stolen had not been recovered, the Applicant was alleged to have committed the offence whilst serving a suspended sentence for a similar offence, and the victim had received injuries.

The Applicant now makes this application for bail in this court. When he first appeared in the High Court on the 16^th of December 2005, State counsel said that it was not certain that the DPP would file an Information because the case did not appear to warrant a High Court trial. Information has still not been filed. On the 21^st of December, the Applicant applied for bail on the ground that the conditions of his custody were inhumane and degrading. He further said that he had never been in breach of any bail conditions and would appear in court when required to do so. He read out submissions in court, pointing to the poor ventilation in the cell, the fact that three men are kept in one cell, the lack of exercise, the unsanitary sewage disposal facilities, and the lack of hygiene associated with the showers and the bedding.

The State opposed bail and asked for leave to lead evidence. Counsel called ASP Cagidaveta, the Officer-in-charge of the Korovou Prison. He said that the Applicant was now in a cell alone (since the 3^rd of January 2006) but he could not say for certain that the situation would remain the same because of demands on the cell facilities as a result of overcrowding. He said that the remand prisoners were not given exercise, but that they were released from their cells twice a day for 45-50 minutes for their meals and church service. He did not deny that the remand prisoners are now, once again, held in the Awaiting Trial Block despite the decisions of several High Court judges that the conditions of custody in that Block are in breach of section 25 of the Constitution. Further, it is clear from his evidence that nothing has changed since the findings of those judges in the cases of Senijieli Boila and Pita Nainoka HAC0032 of 2004S, State v. Eugene Tuni Ladpeter HAC0019 of 2004S, Tawake Cakacaka v. The State HAM0045.04S and Peceli Vuniwa v. The State HAM0050 of 2005S. Nor can there be any doubt that the Applicant was shifted to a cell on his own, because of this application for bail.

State counsel was therefore put in a difficult position. She simply said, that having heard the evidence of ASP Cagidaveta, she left the question of bail to the court.

The Applicant is 20 years old and has allegedly re-offended on bail. He is therefore a bail risk.

However, there is no trial date set, and he has now been in custody for over 4 months. Further, the conditions of his custody are identical to those in the cases of Cakacaka, Vuniwa and Ladpeter.

Having heard the evidence of the Officer-in-Charge of the Korovou Prison, I am left in no doubt that the Prisons Department has taken no steps to improve the conditions of custody of the remand prisons. Further, I am left in no doubt that there are no plans for the future, to improve those conditions. The Officer-in-Charge referred to plans to move prisoners to the Naboro Prison, to a new complex. However, he agreed that these plans did not include the movement of remand prisoners who would remain in the condemned, degrading and inhumane Korovou Prison.

The problem has now become a most serious one, because as I have said in a number of judgments, the result could have a serious impact on the law and order situation in Fiji. The problem could result in the waste of prisons and police resources in the recapturing of remand prisoners who should not have been released in the first place. The answer is a simple one. It is to relocate the remand prisoners as quickly as possible to cells, which conform to the United Nations Minimum Standard Rules, and to conditions of custody, which do not offend section 25 of the Constitution. Clearly the problem is not lack of resources because the executive has provided resources for convicted prisoners.

In this case the result is inevitable. The Applicant is held in remand in breach of section 25 of the Constitution. I have no option but to release him on bail forthwith, on conditions which I will now proceed to set.

Nazhat Shameem
JUDGE

At Suva
5th January 2006