Wainimala v State [2009] FJHC 64; HAM012D.2009 (5 March 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM 012 of 2009

Between:

SAKARAIA WAINIMALA
Applicant

And:

THE STATE
Respondent

Hearing: 4th March 2009
Ruling: 5th March 2009

Counsel: Mr. R. Prakash with Ms P. Kenilorea for Applicant
Ms N. Ratakele for State

BAIL RULING (2)

[1] This is the second bail application made by the Applicant in the High Court. He was refused bail by this court on the 26th of February 2009 on the ground that he had interfered with the main prosecution witness in his pending trial in the Nausori Magistrates’ Court. He was found in breach of two of his bail conditions.

[2] He now makes this application on medical grounds. He relies on the contents of his affidavit dated the 27th of February 2009, and filed in the High Court on the 2nd of March 2009.

[3] The affidavit states that the Applicant is 50 years old, and that he suffers from constant backache, gout, arthritis and a spinal fracture. He has received medical attention for these conditions since at least 2004, and it appears from an annexed medical report from the Republic of Fiji Military Forces Medical Centre, that he has suffered the conditions during his work as a field training instructor. In August 2008 he was complaining of a painful left foot which was diagnosed as a "known case of gouty arthritis." On the 4th of November 2008, the army doctor noted that he had lower back pain as a result of an old rugby injury and that it was aggravated by cold weather. Defence counsel also obtained a hand written medical report from Doctor Sitiveni Traill of the CWM Hospital. It states that on the 19th of July 2004 he already had a 10 year old history of lower back pain with pain radiating down both his legs and that his condition was relieved by bed rest.

[4] He was last reviewed at the CWM Hospital in December 2005, and his diagnosis remained the same. Dr. Traill states that he suffers from severe osteoarthritis of his lumbar spine, usually aggravated by activity. He also "probably" suffers from gout, managed with medication and a special diet.

[5] The Applicant submits that this medical condition cannot be properly managed in prison, that it is aggravated by the cold and physical activity and that his requests for proper medical attention in prison has fallen on deaf ears.

[6] The State disagrees. Relying on the affidavit of ASP Sevuloni Naucukidi the officer-in-charge of the Suva Prison, the State says that the Applicant has made a complaint to the prison medical orderly, but it was only in respect of back ache. On an examination of the Applicant, no deformation or abnormalities were found, and he was given Brufen tablets for the pain. He was reviewed on the 20th of February 2009. According to this affidavit, he never complained of gout or arthritis but in any event he is not involved in any physical work because he is a remand prisoner, and has been taken out of the remand dormitory and given a cell with a bed in it so that he can rest night and day. The officer-in-charge also states that on a doctor’s recommendation, the Applicant can also be given a special diet. Lastly, he states that "all the concerns of the Applicant in regards to the care he needs for his medical condition can be facilitated and accommodated in prison while on remand."

[7] The other grounds raised by the Applicant are that he is the sole breadwinner in his family, that he was building an extension to his house in his village and that he is the only person who can supervise the work. The State submits that these are not compelling reasons for bail to be granted.

[8] Although generally all accused persons have a right to bail, the presumption in favour of bail is rebutted when the accused is found to be in breach of bail. Only one week ago, I found as a matter of fact, that the Applicant was in breach of his bail conditions, and that the interests of justice would be best served if he were to be kept in remand pending trial. The compelling factor at this stage is the integrity of the proceedings in the Magistrates’ Court, and the protection of the witnesses for the prosecution.

[9] In these circumstances I would need to be persuaded that compelling reasons exist to justify a grant of bail. Of even greater concern is that when this case was called on the 2nd of March 2009 in the Magistrates’ Court, neither the prosecution nor the defence requested a hearing date. In a case of this nature, with the accused in custody and the main prosecution witness under pressure to retract, an early hearing date is in the best interests of both the parties.

[10] In relation to bail, I find that although the Applicant does suffer from back pain, and leg pain as a result of osteoarthritis and possibly gout, the condition can be managed in prison. He has already been given a cell with a bed in it. Further, even with the condition he suffers, he was part of Fiji’s peacekeeping forces in Iraq until December 2008. I cannot accept that he would have been able to serve as an active soldier in Iraq on peacekeeping duties if he had been so adversely affected by arthritis.

[11] Bail is therefore refused. I urge the defence and prosecution to set a hearing date as quickly as possible. I also recommend that the Applicant be examined by a doctor so that any changes to his diet can be enforced by the Suva Prison.

Nazhat Shameem
JUDGE

At Suva
5th March 2009