State v Takiveikata [2008] FJHC 31; HAM107.2007 (4 March 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc : Case No : HAM 107 of 2007

BETWEEN:

THE STATE
Applicant

AND:

RATU INOKE TAKIVEIKATA
JONE BALEDROKADROKA
FEOKO GADEKIBUA
BARBADOS MILLS
SIVANIOLO NAULAGO
METUISELA MUA
EPARAMA WAQATAIREWA
KAMINIELI VOSAVERE
PAULIASI NAMULO
Respondents

Counsel: Ms. A. Prasad for the State
Mr. N. Naco for 1st Respondent
Mr. D. Sharma for 2nd Respondent
Ms. P. Salele for 5th Respondent
Mr. T. Fa for 6th Respondent
Mr. Vosarogo for 3rd, 4th, 7th, 8th and 9th Respondents

Date of Hearing: Friday 29th February, 2008
Date of Ruling: Tuesday 4th March, 2008

RULING

[1] This is an application by the Director of Public Prosecutions to review and revoke the bail of the respondents, which was granted by the Magistrates’ Court at Suva. The application is supported by the affidavits of Superintendent Waisea Tabakau, Superintendent Tevita Lesu and Lieutenant Colonel Sitiveni Qiliho.

[2] On 8th November 2007, the respondents appeared in the Magistrates’ Court on serious charges of mutiny and conspiracy to murder. From the affidavits of the State, it appears that the prosecution case substantially rests on the direct evidence of two under cover army officers who were present in about twelve meetings held at various places in Fiji where the respondents allegedly entered into an unlawful agreement to kill the three complainants specified in the charges. Of course, the veracity of the witnesses’ evidence will be determined at the trial.

[3] After the arraignment in the Magistrates’ Court, the respondents were denied bail and remanded in custody.

[4] The respondents applied to the High Court for a review of the decision refusing bail. On 30th November 2007, this Court refused to grant bail to the respondents. At that time the substantive matter was still before the Magistrates’ Court.

[5] On 14th December 2007, a senior State counsel informed the learned Magistrate that the prosecution was reviewing the charges and bail and that there may be changes to the current status quo. The counsel sought and was granted a short adjournment.

[6] On 19th December 2007, the counsel for the State withdrew the serious charge of mutiny against the respondents. The amended charges were put to the respondents and they all pleaded not guilty.

[7] Counsel for the State then informed the learned Magistrate as follows:

"The State’s position has softened in respect of the issue of bail. We do not object to bail provided strict conditions are imposed".

[8] Without inviting a response from the respondents, the Magistrates’ Court granted bail on stringent conditions.

[9] Two days later, that is, on 21st December 2007, the State filed this application to review and revoke bail.

[10] The hearing of the application was delayed because of the late filing of further affidavits and submissions by the State.

[11] The respondents strenuously oppose the application.

[12] In order for the State to succeed in its application, they must satisfy the Court that there has been a material change in the circumstances, which justifies a revocation of bail. This is the test under the common law.

[13] The State points to the unavailability of the national security report on 19 December 2007 and which was made available at a later stage of the proceedings as a material change of circumstances to justify revocation of bail. The State submits:

"Due to the period of time that had elapsed since the last security briefing the State did attempt to obtain an updated report from both the military and the police prior to the court appearance on 19 December 2007. Both the Director Criminal Investigations Department and Divisional Crime Officer Southern were asked to give security briefing but they indicated that they were not able to do so. The military on the same day were also requested to provide a security briefing, which they undertook to provide the next morning. It was never given."

[14] In my view, the State’s submissions are not entirely consistent with the position the State took in the Magistrates’ Court on 19 December 2007.

[15] If the State had requested for a security report from the police and the army, and the report was not timely made available to them, then one would have thought that the State counsel would have so informed the court and sought a short adjournment to obtain the report. Instead, the senior counsel from the Office of the Director of Public Prosecutions boldly asserted that the State’s position in respect to bail had "softened" and then invited the court to grant bail on strict conditions when the respondents had not even applied for bail. The magistrate acceded to the State’s request and granted bail to the respondents. In this Court the State has not contended that the counsel in the lower court had acted improperly.

[16] The change of circumstances relied on by the State, in my view, arises from the conduct of the State and not the respondents. This Court will only revoke bail if there is a change of material circumstances arising from the conduct of the accused. The State’s failure to timely obtain a security report cannot be attributed to the respondents. Nor is there any suggestion that the respondents have breached their bail conditions and therefore constituting a material change in circumstances to justify revocation of bail.

[17] However, this Court of its own motion can review bail afresh notwithstanding the position taken by the State in the lower court when there is an issue of threat to national security and public order. This is because the question of bail is always for the courts. The courts have a duty to protect the community. There is a wider discretion in terms of the information the court can take into consideration when reviewing afresh the question of bail.

[18] In Nottingham Justices, ex parte Davies [1981] QB 38, Donaldson LJ said:

"The court considering afresh the question of bail is both entitled and bound to take account not only of a change in circumstances which occurred since that last occasion, but also of circumstances which, although they then existed, were not brought to the attention of the court. The question is a little wider than "Has there been a change?"

[19] When considering afresh the question of bail, the court must act in accordance with the presumption in favour of bail contained in the Bail Act.

[20] There is no doubt that a threat to national security and the need to preserve public order can justify continued detention of an accused. However, there should be a real possibility of the threat to national security and public order before the courts will encroach into the presumption of innocence and personal liberty of an accused. In this regard, I have carefully considered the affidavits of the State. The affidavits are substantially a replica of the earlier affidavits relied on by the State when they opposed bail in this Court.

[21] Obviously, there has been no change to the level of threat to national security since the respondents were first charged. The initial assessment of the threat to national security was based on the nature of the allegations and the personal circumstances of the respondents. The State asserted that the respondents by virtue of either their social status in the community or their past military training could bring public disorder. The nature of the allegations in itself does not constitute sufficient ground to revoke bail and take away the respondents’ Constitutional rights to personal liberty and presumption of innocence.

[22] Since the granting of bail, the respondents have strictly obeyed their bail conditions. The respondents, in my view, by their conduct have succeeded in refuting the State’s contention that the respondents are a threat to national security.

[23] The State has failed to satisfy the Court that there has been a change of material circumstances arising from the conduct of the respondents to justify revocation of their bail. In addition, there is no justifiable ground to revoke bail. The application is refused. The respondents are granted fresh bail on the same terms and conditions which were imposed by the Magistrates’ Court.

Daniel Goundar
JUDGE

At Suva
Tuesday 4th March, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Naco Chambers, Suva for 1st Respondent
R. Patel & Co., Suva for 2nd Respondent
Q.B. Bale & Associates, Suva for 5th Respondent
Tevita Fa & Associates, Suva for 6th Respondent
Legal Aid Commission, Suva for 3rd, 4th, 7th, 8th, and 9th Respondents