State v Khan [2008] FJHC 62; HAC009.2008 (11 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 009 of 2008

BETWEEN:

THE STATE

AND:

BALLU KHAN
RATU INOKE TAKIVEIKATA
JONE BALEIDROKADROKA
FEOKO GADEKISUVA
BARBADOS MILLS
SIVANIOLO NAULAGO
METUISELA MUA
EPARAMA WAQATAIREWA
KAMINIELI VOSAVERE
PAULIASI NAULAGO

Counsel: Ms. N. Tikoisuva for the State
Mr. G. Leung for 1st Accused
Mr. Naco for 2nd Accused
Mr. D. Sharma for 3rd Accused
Ms. P. Salele for 6th Accused
Mr. T. Fa for 7th Accused
Mr. Vosarogo for 4th, 5th, 8th, 9th & 10th Accused

Date of Hearing: Wednesday 26th March, 2008
Date of Ruling: Friday 11th April, 2008

RULING

[1] Each accused person applies for variation of bail conditions. The application was orally made by their respective counsel.

[2] All except Mr. Takiveikata have entered fresh bail after their arraignment in the High Court. Mr Takiveikata has not yet appeared for arraignment due to illness.

[3] The bail conditions of all the accused persons are similar except that Mr. Khan has an additional condition of reporting to a police station.

[4] All accused persons seek cancellation of the curfew hours on the ground that the condition is unreasonable. In addition, Mr. Khan seeks revocation of his reporting condition saying there should be uniformity in the bail conditions of all the accused persons. Mr Khan also seeks to uplift the condition restricting communication between the accused persons so that they could discuss matters related to their business.

[5] Counsel for Mr. Takiveikata advanced similar arguments.

[6] The State opposes the applications. Counsel for the State submits that the applicants should file a motion supported by an affidavit if they want their bail conditions varied.

[7] Whilst there is no procedure prescribed by the Bail Act for review of bail conditions, in my view, where the outcome of an application to vary bail conditions depends on assessment of some evidence, the proper procedure is to file a motion supported by an affidavit.

[8] The reason for this procedure is obvious. The courts cannot accept evidence from the bar table on contentious issues. A motion supported by an affidavit would not only give notice to the opposing party but allow an opportunity to reply.

[9] As far as the present applications are concerned, I have decided to consider them without adhering to the above procedure.

[10] The reasonableness of the bail conditions must be measured with the factors specified in s. 23 of the Bail Act. Section 23 provides:

Bail must be granted unconditionally unless the police officer or the court, as the case may be, considers that one or more of the conditions mentioned in section 22 should be imposed for the purpose of –

(a) ensuring the accused person’s surrender into custody and appearance in court;

(b) protecting the welfare of the community; or

(c) protecting the welfare of any specially affected person.

[10] In Illiaseri Saqasaq v the State, HAM005.06S, Gates J said:

"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."

[11] The accused persons were granted bail despite facing very serious charges because of the presumption of innocence which is a cornerstone of our criminal justice system. Bail was granted over strong objections from the State who sought revocation of bail at one stage because of the fear of threat posed by the accused persons to the public order. The State’s concern is legitimate. After all, the accused persons are facing allegations that they conspired to kill the Interim Prime Minister, the Interim Finance Minister and the Interim Attorney General. The State’s concern was addressed by imposing stringent bail conditions.

[12] Against this background, the accused persons were granted bail. The condition imposed on Mr. Khan to report to a police station is justifiable because he is a foreign national and has financial means to abscond. The restriction of the communication between the accused persons is also understandable. Mr Takiveikata is in a position to influence given his chiefly status in the community. The restriction of the communication between the accused persons does not mean that their counsel cannot meet to prepare their defence.

[13] For these reasons, I am not satisfied that that the present bail conditions are unreasonable in the circumstances of this case. The present bail conditions of the accused persons would ensure their appearance in court and at the same time protect the welfare of the community. The applications are refused.

[14] In future any application for variation of bail conditions should be made by way of a motion supported by an affidavit. Each application would be considered on merits after the State had an opportunity to reply.

Daniel Goundar
JUDGE

At Suva
Friday 11th April, 2008

Solicitors:
Office of the Director of Public Prosecutions for the State
Howards Lawyers for 1st Accused
Naco Chambers Ltd., Suva for 2nd Accused
Patel Sharma & Associates, Suva for 3rd Accused
Legal Aid Commission, Suva for 4th, 5th, 8th, 9th and 10th Accused
Q.B. Bale & Associates, Suva for 6th Accused
T. Fa & Company, Suva for 7th Accused