Fiji Independent Commission Against Corruption v Tuisolia [2009] FJHC 159; HAM045 & 048.2009 (4 August 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIM. MISC. CASE NOS: HAM 045 & 048 OF 2009

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
Applicant

AND:

RATU SAKIUSA TUISOLIA
Respondent

Date of Hearing: 20th July 2009 & 22nd July 2009
Date of Ruling: 4th August 2009

Counsel: Mr. A. Rayawa for Applicant
Mr. D. Sharma for Respondent

RULING

[1] This is an application for bail variation, to impose overseas travel restrictions on the accused and for him to surrender his travel documents to the court as conditions of bail pending trial. The application is made by FICAC.

[2] The accused is charged with forty four counts of fraud related offences. The substance of the allegations against him is that he abused the credit facility of his employer by misusing his official credit card for his personal benefit. The accused has pleaded not guilty to the charges and the trial is pending before the High Court.

[3] When the accused appeared in the Magistrates’ Court for arraignment, FICAC prosecutor applied for the surrender of travel documents as a condition of bail because the accused is a frequent traveler. The accused objected to the condition on the basis that he had family and business interests in Fiji and therefore he was an unlikely candidate for flight risk. The Magistrate sustained the objection and granted bail on the following conditions:

1. That the defendant does not interfere with any prosecution witnesses.
   
2. That defendant provides a surety in the sum of $1,000.00.
   

[4] When the case was called in the High Court, FICAC consented to the continuation of bail for the accused. The High Court ordered the accused to sign fresh bail on the same conditions which were imposed in the Magistrates’ Court. The accused did not sign fresh bail in the High Court until this application was filed by FICAC. Also, the non compliance was inadvertently overlooked by the clerks of the High Court.

[5] However, the accused appeared in all his hearings in the High Court. He was represented by counsel, who took objection to the legality of FICAC, but the issue was superseded by the constitutional event of 10 April 2009.

[6] On 17 July 2009, counsel for the accused withdrew after seeking leave of the court. The accused advised the court that he wanted a lengthy adjournment to instruct a new counsel. The case was adjourned to 4 September 2009 to check on legal representation.

[7] On 21 July 2009, FICAC filed a Notice of Motion, supported by an affidavit from a Commission Officer, Isireli Tagicaki.

[8] Officer Tagicaki in his affidavit states the reasons for the application:

"That the accused has not signed his High Court Bail Form when he first appeared in the High Court and as such is not restricted in any way or form in relation to his conduct and movements within and outside of Fiji.

That we have reason to believe that the respondent accused is attempting to leave Fiji to travel to New Zealand where he intends to reside and work.

That the accused is currently making arrangements to travel to New Zealand this Sunday the 19th day of July 2009.

That the accused has failed to inform the High Court of his intention to travel and reside in New Zealand and to work there and for this we have every reason to believe that he is a flight risk."

[9] The accused responded to officer Tagicaki’s affidavit by deposing an affidavit. In his affidavit the accused denied the allegation that he was attempting to leave Fiji and reside in New Zealand.

[10] Mr. Rayawa applied for leave to cross examine the accused on paragraph 8 of the accused’s affidavit. The accused elected to give evidence. Paragraph 8 states:

"That I have no job arrangements in NZ or anywhere else abroad. I have a position at the International Union on the Conservation of Nature (IUCN) Oceania Regional Office in Suva as the Coordinator for its new Pacific Ocean 2020 Challenge conservation project. I was planning to travel to Honolulu on Sunday 19-22 July 2009 to attend meetings with senior officials of the Pacific Islands Development Program (PIDP) at the East West Centre to discuss their partnership in the Pacific Ocean 2020 Challenge initiative which I am coordinating. I was to travel to Honolulu with the Regional Director for the IUCN Oceania Regional Office in Suva, Mr Taholo Kami. This meeting had been planned since 5 May 2009 as confirmed in the relevant letter dated 8 May 2009 which Mr Taholo Kami sent to Mr Sitiveni Halapua, the Director of PIDP in Honolulu. Attached as Annexure D are documents of that meeting."

[11] Under cross-examination the accused admitted applying for overseas jobs but his applications were unsuccessful because of the pending criminal case against him. The accused said that as the matter stood now he had no job arrangements in New Zealand or anywhere else abroad, and that is why he did not see fit to advise the court or FICAC.

[12] The ruling on FICAC’s application was deferred to a later date. Before the ruling on variation of bail conditions was delivered, on 21 July 2009, FICAC filed a second Notice of Motion, seeking a temporary Stop Departure Order against the accused, to prevent him from leaving the country pending the decision of this court. FICAC’s second application was founded on additional information that the accused’s restaurant business has been put up for sale.

[13] The accused replied to the second application. In his affidavit the accused did not deny that his business has been put up for sale but he said the reasons for the sale of his business are due to the downturns in restaurant business and the difficulty in servicing his debt. The accused refutes any suggestion that he is trying to abscond from Fiji.

[14] Under the Bail Act, the primary test for bail is whether the accused will appear for trial. Section 23(a) of the Bail Act provides that bail must be granted unconditionally unless the court considers that conditions should be imposed for the purpose of ensuring the accused’s surrender into custody and appearance in court. The conditions of bail should be reasonable, that is, considered on an objective assessment of all the relevant circumstances.

[15] The test for reasonableness of bail conditions was stated in Iliaseri Saqasaqa v. State HAM 005.06S and applied in State v. Khan [2008] FJHC 62 and Qarase v. FICAC Misc. Case NO. HAM039/09 as:

"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."

[16] In Qarase v. FICAC (supra), this Court said:

"The right to liberty is a basic human right. Bail for a person accused of an offence means authorization for the person to be at liberty instead of in custody, on condition that the person appears for trial. Conditional bail is granted as an alternative to pre-trial detention. Permissible conditions include the surrendering of travel documents, imposition of a residence requirement and the provision of a surety assessed in relation to the means of the accused. These restrictions on the right to liberty are consistent with international law (Wemholl v Germany (1968) 1 EHRR 550)."

[17] The surrendering of travel documents pending trial is not an unusual condition of bail. It is a standard condition that is contained in the bail form and the condition is imposed almost in every criminal case. There has to be present exceptional circumstances to discriminate one accused over the others who face overseas travel restrictions pending their trial.

[18] The accused has his liberty. He is not in custody. However, since bail was granted, there has been material change to his personal circumstances that could be considered as legitimate flight risk factors. The accused is a frequent traveler. He has entry visas to many countries. He is facing serious charges. His trial is pending. His counsel has withdrawn. He has sought a long adjournment to instruct a new counsel for his trial. Mr. Sharma, who appeared in the bail hearings, advised the court that his instructions are limited to the bail hearings. While the trial is pending, the accused made attempts to secure overseas jobs. He is in the process of selling his business. He signed his bail form in the High Court when advised that he has not complied with an earlier order of the court.

[19] Taking all these matters into account, I am satisfied that it is not unreasonable to impose the following additional bail conditions on the accused, to secure his appearance in court for his trial:

1. The accused must surrender all his travel documents to the Criminal Registry within 24 hours;
   
2. The accused must not travel overseas pending trial, without the leave of the High Court.
   

SO ORDERED.

Daniel Goundar
JUDGE

At Suva
4th August 2009

Solicitors:
Office for the Commissioner for FICAC for Applicant
Messrs. R. Patel Lawyers for Respondent