Xhemali v State [2011] FJHC 654; HAM177.2011 (14 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Crim. Misc. Case No: HAM177 of 2011

BETWEEN:

ELTON XHEMALI
Applicant

AND:

THE STATE
Respondent

Hearing & Ruling: 14 October 2011

Counsel: Mr. F. Vosarogo for Applicant
Ms I. Whippy for State

RULING

[1] This is a second application for bail by the accused. The first application for bail was refused by Madigan J in a decision delivered on 8 March 2011.

[2] The current application is premised on the concluding remarks of Madigan J at paragraph 10:

"The application is refused, but the applicant may ask the Court of Appeal to review this decision (pursuant to section 30(4) of the Bail Act) or he may make another application [pursuant to section 14(1)] if his circumstances change. [An advantageous circumstance would be the presence of a parent or a person in loco parentis who could assume the role of a Court sanctioned surety]."

[3] The change of circumstance relied upon by the accused is that his solicitor's Chief Legal Clerk, Mr. Edwin Wainiqolo has offered to be his surety and to accommodate him at his residence while the case is pending for trial.

[4] The State opposes the application. Counsel for the State submits that Mr. Wainiqolo is not a suitable surety because he is neither related to, nor is familiar with the accused.

[5] In refusing bail, Madigan J found the accused to be a flight risk because he was a foreigner without any ties in Fiji and was charged with a serious drug offence involving some degree of planning.

[6] The question is whether the surety offered by the accused diminishes the risk of absconding bail?

[7] Under the Bail Act 2002, the qualifications of sureties are determined by the court (see s.2). Sureties must be over the age of eighteen years and they must have the capacity to take bail undertakings. The obligations of sureties are contained in section 22. Sureties are obliged to acknowledge that they are acquainted with the accused and regard the accused as a responsible person who is likely to comply with a bail undertaking. Sureties are further obliged to enter into an agreement to forfeit the security deposit or bail bond if the accused fails to comply with his or her bail conditions. If the court is in doubt as to capacity of the surety to provide a bail undertaking, the court must ascertain, under oath, whether the surety has the capacity to meet the bail obligations (s.23(3)).

[8] The qualifications of sureties have been further considered in a number of cases. Sureties must be independent and not indemnified by the accused (Bechu & Anor. v. R [1962] FLR 240).

[9] In Tawake Cakacaka v. The State Misc. Action No. HAM045.04S (2 August 2004) Gates J (as he was then) held that a spouse would not be a suitable surety since that person would lack independence, and by virtue of the emotional attachment to the accused would be unlikely to ensure the attendance of the accused at court. In Ilisoni Nacolauli v. The State Misc. Action HBM0011L (17 October 2000), de facto spouses were held to be unsuitable to stand as sureties for the same reasons.

[10] In State v. Anthony Frederick Stephens Misc Action HAM004.97S (26 May 2003), the court observed that prosecution witnesses, even if relatives of an accused, would not be suitable persons to stand as sureties because of a conflict of interest.

[11] In Rajesh Kumar v The State HAM008.05S (23 March 2005) Shameem J said at p.4:

"Sureties are usually offered, who are in a position to ensure the applicant's presence in court, not only because of the fear of losing the money guaranteed if there is non-appearance, but also because of some ability to insist on the applicant's obedience to bail conditions."

[12] From these authorities, it is clear that sureties must not only be persons with good standing in the community, they must be independent and command some control over the accused to guarantee court attendance.

[13] In the present case, Mr. Wainiqolo's age and financial status have not been disclosed to the court. All that the court has been informed is that he is employed as the Chief Legal Clerk by the law firm representing the accused. Mr. Wainiqolo resides at Lot 17 Bidesi Street, Raiwasa, Suva.

[14] It is not in dispute that there is no relationship between the accused and the proposed surety. In my mind I have no doubt that Mr. Wainiqolo is a person of a good character and has a stable employment. The question is what control would he have over the accused who is a total stranger to him?

[15] Mr. Wainiqolo, clearly, is not in a position of authority over the accused. If anything, the proposed surety has a conflict of interest by virtue of his position as an employee of the law firm representing the accused and making this application for bail. The relationship between the accused and the law firm representing him is one of a solicitor and a client. The solicitor has an interest in having his client released on bail. The solicitor's clerk has offered his assistance, albeit in good faith, to be the accused's surety. Therefore, the surety has an interest to have the accused released on bail and that he cannot be considered to have an independent interest to ensure the accused will turn up for his trial. Furthermore, without a relationship of authority, the accused is likely to care less of the consequences on the surety if he absconds from the jurisdiction of Fiji to avoid trial.

[16] For these reasons, the proposed surety is unacceptable to the court and the application for bail is refused. The accused will remain in custody pending trial.

Daniel Goundar
JUDGE

At Suva
14 October 2011

Solicitors:
Mamlakah Lawyers for Applicant
Office of the Director of Public Prosecutions for State