Hao v State [2013] FJHC 129; HAM030.2013S (21 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS CASE NOS. HAM 030 OF 2013S

BILL HAO

vs

THE STATE

Counsels : Ms. S. Vaniqi for Accused
Mr. M. Korovou for State
Hearing : 8th March, 2013
Ruling : 21st March, 2013

RULING ON BAIL PENDING TRIAL

1. The accused had made three previous bail applications, and I have refused them all on 22nd June, 2012, 17th August, 2012 and 13th February, 2013.
   
2. In my decision of 22nd June, 2012, the accused's bail application was carefully consider under the relevant Sections of the Bail Act 2002. The mandatory factors required by Section 19 of the Bail Act 2002 were carefully considered and decided upon, that is, as regards the likelihood of the accused surrendering to custody, as regards the interests of the accused person, and as regards the public interest and the protection of the community.
   
3. In paragraph 21 of my 22nd June, 2012 ruling, I said as follows:
   

"...After carefully considering the above factors, and after taking into account the accuseds' applications and the State's response, including their submissions, I have decided, in the interest of justice, to refuse all the accuseds' application for bail. They are remanded in custody until further orders of the court. Only if there is a significant change in circumstances, can a new application for bail be made. In the meantime, the parties must prepare themselves for trial. I order so accordingly..."

4. On 17th August, 2012 and on 13th February, 2013, I dismissed the accused's second and third bail applications, on the ground that, nothing has really changed from the circumstances that were considered in my first bail ruling of 22nd June, 2012.
   
5. On 11th February, 2013, the accused filed his fourth bail application. A notice of motion and affidavit in support was filed and served. The State replied with an affidavit and written submission on 28th February, 2013. I have carefully read and considered all the papers filed by the parties.
   
6. The principal argument of the defence was that, bail should be granted to him pending his trial, because of "the conditions of that custody" [Section 19(2)(b)(ii) of the Bail Act 2002]. They are of the view that, the conditions of the remand centre at Korovou Prison are such that, it will cause a deterioration in his health. They have submitted a medical report, dated 1st February, 2013, prepared by one of the foremost medical authorities in this country, that is, Doctor Joji Malani. I have carefully read and considered the Learned Doctor's medical report.
   
7. In the last paragraph of his report, the Learned Doctor commented as follows:
   

"...I feel that this man with hypertension and hyperlipidemia with two previous strokes in the past still has poorly controlled BP. This man has a significant risk of developing another stroke given his predisposition and the present underlying environment. He would best be managed outside jail to remove the stress factor and allow better management of his diet, medications and stress..."

8. The State countered with an affidavit in reply from Superintendent of Police Eparama Waqa, the police investigation officer, in paragraphs 14 and 15 of his 27th February, 2013 affidavit. His position can best be summarized by paragraph 3.6 of the State's submission, which said:
   

"...The State submits that the medical report issued by the Consultant Physician Dr Malani confirms that the applicant's health was properly cared for in remand because his examination of the applicant confirms that he did not look distress, his cardiovascular system is normal with dual heart sound no murmur and normal JVP, No edema. The chest is clear and abdominal examination normal. This factual finding confirms the fact that the health condition of the accused has not deteriorated for the worse whilst in custody..."

9. In a sense, the State had used the defence's own medical report to counter their argument. One would possibly say that the defence "had shot themselves in the foot". The Learned Doctor's report, on the one hand, argued that bail would best managed the accused's stress, yet, on the other hand, argued that this health was fine while in custody, as pointed out by the State.
   
10. Given the above, I find there is no change in circumstances, and I refuse the accused's fourth bail application. I repeat what I said in my 22nd June, 2012 ruling.
    

Salesi Temo
JUDGE

Solicitor for the Accused : S. Vaniqi, Barrister & Solicitor, Suva
Solicitor for State : Office of the Director of Public Prosecution, Suva