State v Buatoka [2007] FJHC 37; HAM030.2007 (9 May 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Misc. Case No: HAM030 of 2007

Between:

STATE
Applicant

And:

VUETASAU BUATOKA
Respondent

Hearing: 7th May 2007
Ruling: 9th May 2007

Counsel: Ms S. Puamau for State
Mr. I. Khan for Respondent

Ruling on Revocation of Bail

The State makes an application either for the revocation of bail, or for bail to be varied. The supporting affidavit of ASP Adi Sen states that the Respondent is bailed in the sum of $500 with one surety in the same sum. A material witness for the prosecution is Mr. Nick Vasutabu. In April 2007, Mr. Vasutabu informed ASP Sen that the Respondent had contacted him to change his evidence. A copy of his statement, dated the 19th of April 2007 was annexed.

In that statement Mr. Vasutabu states that the case was set for hearing on the 5th of February 2007. On the 2nd of February or earlier in the same week, he received a call on his mobile phone. The conversation was as follows:

"Nick: Who is this?

Caller: Buatoka please help me.

Nick: In what way could I help you?

Buatoka: Please come down to town and meet my lawyer who is coming from Nadi on that day and tell about the meeting you and Faruk had with me at my office regarding licence.

Nick: What do you want me to tell him?

Buatoka: Please just tell him that the conversation that you had with me was all in Fijian and my lawyer will fix everything from there."

The witness then consulted some of his friends, and he was advised not to change his statement. The State says that this statement is sufficient to prove that the Respondent was interfering with a State witness with a view to having him change his evidence.

The defence disputes this. The Respondent gave evidence saying he had met Mr. Vasutabu at the Suva Private Hospital by chance and had a conversation with him during which Mr. Vasutabu had asked him about the case. The Respondent said that the case was being handled by his lawyers. Mr. Vasutabu then said that he wanted to discuss the case with him and that he had made his statement while recovering from a stroke. He then gave the Respondent his telephone number.

One week later the Respondent called him, first on his landline, then on his mobile phone. He told Mr. Vasutabu that he had a lawyer and if Mr. Vasutabu wanted to change his statement, he should see his own lawyer. He said that he knew it was improper to discuss the case with a State witness but that he was curious to learn why he wanted him to call the witness.

There is therefore no dispute that there was a conversation about the case and the evidence, and that the Respondent knew it was improper. Because there is dispute about whether the Respondent asked Mr. Vasutabu to change his evidence, or to add a detail, I accept the version of the conversation as given by the Respondent. Mr. Vasutabu was not available to give evidence or to be cross-examined.

On the Respondent’s version of events, there were two conversations with the witness. One was at the Private Hospital, and the other a week later on the mobile phone. During both conversations, the case was discussed. In the second, the Respondent called the witness in order to discuss the case. He knew this was improper.

Such conduct is enough to justify revocation of bail. However, because the witness took almost 3 months to report the matter, and because there is dispute about the allegation of changing evidence, I consider revocation to be too extreme a step.

I do however consider that the Respondent’s bail should be varied. Such variation should protect the rights of the public to ensure that persons awaiting trial attend when required to do so, and do not interfere with the trial process. It should also reflect the gravity of the offence and the risks identified. As Gates J said in Iliaseri Saqasaqa v. The State HAM 005.06S:

"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."

I order that he be bailed in the sum of $2000 with one surety of like sum. I order that he refrain from talking to, approaching or contacting any prosecution witness. I order that he remain at his residential address. Any further breach of bail or contact with any witness will lead to more stringent measures under the Bail Act.

Nazhat Shameem
JUDGE

At Suva
9th May 2007